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HARVARD   UNIVERSITY   PRESS 

CAMBRIDGE,    MASS.,    U.S.A. 


BURGAGE  TENURE 

IN  MEDIAEVAL  ENGLAND 


BY 
MORLEY  deWOLF  HEMMEON,  Ph.D. 

SOMETIME  AUSTIN  TEACHING  FELLOW  IN  HARVARD  UNIVERSITY 


CAMBRIDGE 
HARVARD  UNIVERSITY  PRESS 

LONDON:   HUMPHREY  MILFORD 
Oxford  University  Press 

1914 


J:/! 


COPYRIGHT,   19 14 
BY  HAEVARD  UNIVERSITY 


PREFACE 

The  following  monograph  was  first  prepared  under  the  guid- 
ance and  inspiration  of  the  late  Professor  Charles  Gross  and  was 
accepted  in  partial  fulfilment  of  the  requirements  for  the  degree 
of  Doctor  of  Philosophy  in  Harvard  University  in  1908.  It  was 
also  awarded  the  Toppan  Prize  in  the  same  year.  Summaries  of 
many  of  its  conclusions  were  printed  in  the  Law  Quarterly  Review, 
July  and  October,  1910,  and  January,  1911;  but  the  present 
work  contains  much  which  did  not  appear  there  or  in  the  essay 
as  first  submitted  for  the  Doctorate.  For  careful  revision  of  the 
manuscript  and  proof,  for  the  preparation  of  the  index,  and  for 
verification  of  matters  of  detail,  the  Department  of  History 
and  the  writer  desire  to  express  their  sincere  gratitude  to  Mr. 
G.  W.  Robinson,  Secretary  of  the  Graduate  School  of  Arts  and 
Sciences,  to  whom,  in  the  absence  of  Dr.  Hemmeon,  these  matters 
have  been  entrusted. 


CONTENTS 

PAGE 

INTRODUCTION 3 

CHAPTER   I 

THE  INCIDENTS  OF  BURGAGE  TENURE 

The  Three  Aros:    Ransom,  Knighting,  Marrying ii 

Marriage      12 

Wardship 15 

Relief 18 

Heriot 22 

Escheat     24 

Forfeiture 33 

Fealty 45 

Homage 49 

Military  Service 51 

Retrait  Feodal      52 

Alienation  Fees 54 

Inpenny  and  Outpenny 57 

Suit  of  Court 58 

Summary 59 

CHAPTER  II 

BURGAGE  RENTS 

Landgable  and  Hawgable 62 

List  of  Landgables 67 

Rents  and  Sales  of  Messuages 80 

The  Nature  of  the  Burgage 92 

Foreign  Tenures  within  the  Borough  Bounds     102 

CHAPTER  III 

MOBILITY 

Divisibility 108 

Free  Sale no 

Restricted  Sale 114 

Inpenny  and  Outpenny 127 


viii  CONTENTS 

PAGE 

Free  Devise 130 

Restricted  Devise 135 

The'  Rights  of  the  Femme  Covert 144 

Mortgage 146 

Accumulation  of  Burgages 148 


CHAPTER   IV 

ACCOMPANIMENTS  AND  COMPARISONS 

The  Firma  Burgi 154 

Burgage  Tenure  in  Domesday     158 

English  Burgage  Tenure  and  the  Laws  of  Breteuil    ....  166 

Urban  Tenure  in  Normandy,  the  Netherlands,  and  Germany  .   .  172 

Conclusion 183 

APPENDIX 

URBAN  TENURE  IN  GERMANY 

The  Incidents  of  Weichbild 193 

Ground  Rents 199 

Mobility 201 

BIBLIOGRAPHY 209 

INDEX      219 


ABBREVIATIONS 

C.  A.  D.  Great  Britain.  —  Public  Record  Office.  A  Descriptive  Calendar 
of  Ancient  Deeds  in  the  Public  Record  Office. 

C.  C.  R. Calendar  of  the  Charter  Rolls  Preserved  in  this  Office, 

1226-1344. 

C.  I.  M. Calendar  of  Inquisitions  post  Mortem  and  other  Anal- 
ogous Documents. 

C.  P.  R. Patent  Rolls,   1216-32;    Calendar  of  Patent  Rolls, 

1232-14S5. 

D.  B.  Domesday-Book. 

H.  M.  C.  Royal  Commission  on  Historical  Manuscripts. 

P.  R.  O.  PubHc  Record  Office. 

R.  C.  Record  Commission. 

R.  H.  Illingworth,  William,  editor.     Rotuli  Hundredorum. 

R.  S.  Rolls  Series. 

a.  anno  or  annis. 

c.  or  cir.  circa. 

m.  membrane. 

/.  or  temp,  tempore  or  temporibus. 


BURGAGE    TENURE    IN    MEDIAEVAL 
ENGLAND 


BURGAGE  TENURE  IN  MEDIAEVAL 
ENGLAND 

INTRODUCTION 

In  the  feudal  ocean  which  once  rolled  over  northern  and 
western  Europe  appeared  many  islands,  relics  of  a  submerged 
and  ante-feudal  continent.  These  islands,  some  of  which  were 
artificial  and  imitative,  were  the  urban  communities.  The  waves 
of  feudalism  might  wash  their  walls ;  in  towns  of  artificial  founda- 
tion the  spray  might  be  flung  into  the  narrow  streets,  but  there 
their  course  was  stayed.  For  the  borough,  Stadt,  or  ville  had  a 
tenure  of  its  own,  the  tenure  en  hourgage  of  Normandy,  the 
Weichhild  of  Germany,  the  Burgage  Tenure  of  England. 

In  view  of  its  importance  as  presenting  economic  and  legal 
conditions  of  land-holding  almost  the  same  as  those  of  modern 
days,  it  seems  fitting  that  the  tenure  of  the  EngHsh  mediaeval 
boroughs  should  be  treated  as  a  subject  in  itself;  and  it  is  perhaps 
peculiar  that  no  attempt  to  do  so  should  have  heretofore  been 
made.  In  Germany  urban  tenure  has  been,  and  is  yet  to  some 
extent,  a  question  which  has  aroused  much  controversial  dis- 
cussion by  which  the  literature  of  origins  has  been  greatly  en- 
riched and  the  sum  of  human  knowledge  slightly  increased. 
In  Normandy  and  the  Netherlands  the  tenure  has  been  adequately 
treated.  In  England  the  tenure  of  land  in  the  boroughs  has 
received  some  attention  from  writers  on  burghal  institutions 
in  general,  though  usually  in  a  way  which  indicates  that,  in  their 
opinion,  the  tenurial  side  of  borough  development  is  hardly  as 
important  as  the  pohtical  side.  This  may  be  so,  yet  it  seems  as 
if  the  burgess's  influence  in  shaping  the  political  destiny  of  any- 
thing except  his  own  particular  borough  is  almost  a  negligible 
quantity  in  EngHsh  mediaeval  history,  while  on  the  other  hand 
the  legal  and  economic  example  which  he  set  in  the  matter  of 
transfer  of  real  property  has  its  results  in  the  modern  land  law' 
of  the  realm.      Even  from  the  personal  side  there  is  reason  for 


4  BURGAGE  TENURE  IN  ENGLAND 

investigating  the  tenure,  for  the  close  connection  between  tenure 
and  status  was  a  matter  of  great  importance  in  the  middle  ages, 
a  period  when  the  former  often  determined  the  latter. 

Possibly  one  reason  why  writers  on  English  burghal  institutions 
have  neglected  the  tenurial  side  of  borough  development  is 
because  they  have  commonly  defined  burgage  tenure  when  they 
knew  any  law,  or  have  had  it  defined  for  them  when  they  knew 
none,  as  that  species  of  the  free  or  common  socage  tenure  which 
was  peculiar  to  cities  and  boroughs.  Perhaps  Coke  should  bear 
as  much  responsibility  as  any  one  for  this  definition;  it  is  not  at 
all  satisfactory.  The  framers  of  the  Great  Charter  would  not 
have  accepted  it;  they  drew  a  clear  line  between  holding  in 
socage  and  holding  in  burgage.^  If  one  tenure  be  derived  from 
the  other  this  definition  should  be  reversed,  for  burgage  tenure 
shows  greater  age  in  the  survival  of  at  least  one  archaic  custom.^ 
It  is  more  logical  as  well  as  nearer  in  line  with  fact  to  regard  each 
as  the  descendant  of  a  common  ancestor,  the  ante-feudal  system 
of  land-holding.  But  this  is  the  entrance  to  the  jungle  of  *  ori- 
gins,' which  might  be  less  of  a  jungle  were  its  so-called  explorers 
to  cease  for  a  space  from  internecine  strife. 

As  feudalism  becomes  systematized,  the  burgage  and  the  socage 
tenure  resemble  each  other  less  and  less.  Their  resemblance  lies 
in  freedom  from  the  feudal  incidents.^  Where  they  differ  is  in 
mobility;  the  land  in  the  boroughs  can  be  devised,  sold, 
and  divided.  It  is  true  that  land  held  in  socage  might  be  trans- 
ferred among  the  living.  It  was  often  sold  and  divided,  but  sale 
and  division  were  attained  only  by  permission,  or  payment 
therefor,  or  by  circumventions  of  the  law  such  as  fines  and  re- 
coveries;* devise  the  socage  tenure  never  knew.  Within 
the  boroughs  the  leading  feature  of  the  land,  its  mobility,  was 
the  leading  feature  of  the  land  law;  there  was  no  need  of  resorting 

1  Magna  Carta,  cap.  37. 

'  Military  heriot. 

'  Socage  tenure,  however,  was  subject  to  aids  and  reliefs,  and  sometimes  to 
wardship. 

*  True  also  in  the  main  of  land  held  in  feudal  tenure  even  before  1290.  The 
term  circumvention  is  used  advisedly  and  only  as  an  expression  of  legal  means  of 
change. 


INTRODUCTION  5 

to  collusion  when  land  was  to  be  sold  or  divided.  The  need  was 
the  other  way;  there  must  be  true  deliverance  made  in  respect 
to  a  sale;  there  must  be  publicity,  else  the  sale  might  be  invalid. 

The  peculiar  and  distinguishing  characteristic,  however,  of  the 
borough  land  law,  that  feature  which  marked  it  off  so  sharply 
from  the  land  law  of  the  country,  was  '  freedom  of  devise.' 
Says  Glanvill,  "  God  alone  and  not  man  can  make  an  heir." 
Yet  even  in  Glanvill's  day  man  could  do  in  many  boroughs  what 
only  God  could  do  without  the  borough  bounds.  Burgage 
tenure  then  may  be  defined  as  a  form  of  free  tenure  peculiar  to 
boroughs,  where  a  tenement  so  held  might  be  alienated  by  gift, 
sale,  or  devise  to  a  degree  regulated  only  by  the  custom  of  the 
borough,  unburdened  by  the  incidents  of  feudalism  or  villeinage, 
divisible  at  pleasure,  whose  obligations  began  and  ended  in  the 
payment  of  a  nominal  quit-rent,  usually  to  an  elected  officer  of 
the  borough.^ 

The  scanty  literature  of  our  subject  may  be  said  to  begin  with 
Glanvill's  law-book,  though  there  is  little  to  be  learned  therefrom 
except  that  its  author  knew  what  burgage  tenure  was.^  Bracton 
gives  it  a  little  more  attention.  To  him  freedom  of  devise  seemed 
to  be  its  leading  feature;  ^  Littleton  saw  the  same  aspect.*  The 
appended  quotations  show  that  the  writers  of  these  older  law 
books  had  only  a  derived  interest  in  the  tenure  of  the  boroughs 
and  used  its  customs  for  illustration  of  or  comparison  with  certain 
customs  of  the  common  land  law.  The  reason  for  this  is  that 
pleas  of  land  in  the  boroughs  were  nearly  always  held  in  the 
borough  courts,  than  which  few  privileges  were  more  highly 
valued  by  the  EngHsh  burgesses.  As  royal  judges  therefore, 
these  earlier  law  writers  seldom  had  the  tenure  brought  within 
their  purview ;  only  in  case  of  default  of  judgment  or  like  ground 

^  True  only  at  a  very  early  period  of  burghal  history;  at  a  later  period  most 
tenements  paid  no  quit-rents,  possibly  some  had  never  paid  any. 

^  Treatise,  bk.  vii,  ch.  lo  et  pass. 

'  De  Legibus,  i,  p.  164:  "si  forte  legatum  fuerit,  sicut  in  burgagiis";  ibid., 
i,  p.  388:  "  cum  laicum  feodum  legari  non  possit  nisi  in  rebus  specialibus,  sicut 
burgagiis." 

*  Coke,  Commentary  upon  Littleton,  sec.  585 :  "  in  ancient  boroughs  and  cities 
where  lands  and  tenements  .  .  .  are  devisable  by  testament  by  custom  and  use." 


6  BURGAGE  TENURE  IN  ENGLAND 

of  appeal  was  a  plea  of  land  in  a  borough  heard  in  a  royal 
court.* 

The  best  modern  account  of  the  tenure  in  English  boroughs  is 
that  contained  in  Pollock  and  Maitland's  History  of  English 
Laiv,^  the  fullest  is  that  of  the  introduction  to  the  second 
volume  of  Miss  Bateson's  Borough  Customs,  a  compilation  of 
borough  customals  edited  by  that  writer  for  the  Selden  Society, 
and  arranged,  not  always  correctly,  under  topical  headings,  as 
*  Devise,'  *  Dower,'  etc.^  Each  of  these  accounts,  however,  deals 
with  borough  institutions  in  general;  the  tenure  receives  only  its 
proportionate  share  of  treatment.  Miss  Bateson  has  also  con- 
tributed much  to  the  early  history  of  certain  created  English 
boroughs  by  articles  in  volumes  xv  and  xvi  of  the  English  Histor- 
ical Review,  "  The  Laws  of  Breteuil."  The  most  valuable  treatise 
in  connection  with  the  tenure  for  a  single  borough  is  Maitland's 
Township  and  Borough,  an  explanation,  illumination,  and  crit- 
icism of  tenurial  and  other  conditions  in  mediaeval  Cambridge. 
Yet  when  all  has  been  said,  not  one  of  these  works  has  the  tenure 
as  its  primary  subject;  the  tenurial  side  is  only  one  of  many,  or  is 
subordinate  to  the  political  side,  as  in  Merewether  and  Stephens's 
History  of  the  Boroughs  and  Municipal  Corporations  of  the  United 
Kingdom,  a  pioneer  work  which,  though  not  always  trustworthy 
in  its  conclusions,  contains  much  valuable  material,  now  mostly 
accessible  elsewhere. 

For  the  tenure  in  France  there  are  at  least  three  important 
works,  two  of  which,  Genestal's  La  Tenure  en  Bourgage,  relating 
to  Normandy,  and  Legras's  Le  Bourgage  de  Caen,  seem  to  be  the 
only  treatises  in  any  language  having  the  tenure  as  their  primary 

'  Of  the  three  Littleton  appears  to  have  known  most  about  burgage  tenure, 
yet  that  most  seems  very  little.  Bracton  contradicts  himself  in  regard  to  devise 
in  London.  Some  modem  lawyers  are  little  better;  see  Atcheson,  Case  of  the 
Borough  of  Pelers field,  p.  135. 

*  \'ol.  ii,  pass. 

'  Miss  Bateson's  preparation  for  dealing  with  clauses  in  customals  whose  inter- 
pretation required  legal  knowledge  was  perhaps  hardly  equal  to  that  which  she 
possessed  in  other  respects.  Furthermore,  as  I  shall  indicate,  I  believe  that  in  her 
work  "  The  Laws  of  Breteuil  "  she  has  pushed  somewhat  too  far  an  ingenious 
theory  of  Norman  origins  for  English  borough  customs.  See  below,  pp.  120,  n.  i, 
136,  n.  2  (customals);    106-172  (Laws  of  Breteuil). 


INTRODUCTION  7 

aim.  Of  these  the  latter  treats  in  great  detail  of  the  burgage 
tenure  in  a  single  Norman  city;  the  former,  notwithstanding 
its  title,  really  tells  less  about  urban  tenure,  possibly  because 
its  author  found  less  to  tell,  than  such  a  work  as  Arnold's  Ge- 
schichte  des  Eigentums,  which  has  as  its  subject  the  question  of 
urban  ownership  in  general.  M.  Genestal's  work  is  sometimes 
needlessly  indefinite,  its  matter  is  spread  out  very  thin,  there  is 
much  that  seems  irrelevant,  at  least  to  the  tenure,  while  the 
author  devotes  a  third  of  his  space  to  such  matters  as  the  origin 
of  urban  tenure  and  so  on,  subjects  better  and  more  ably  handled 
by  others,  as  Des  Marez  and  Keutgen.  M.  Legras  adds  nothing 
to  Genestal's  account  of  urban  tenure  except  in  respect  to  trans- 
fer of  tenements  through  the  seigneur  in  connection  with  sales 
at  an  early  period.  The  bulk  of  his  work  is  concerned  with  the 
explanation  and  discussion  of  rents  and  procedure.  In  a  less 
pretentious  work  by  A.  Curie  Seimbres  entitled  Essai  sur  les 
Bastides,  a  study  of  the  villes  neuves  of  southern  France,  various 
features  of  the  tenure  are  discussed  in  connection  with  other 
matters. 

For  the  tenure  in  theLow  Countries  Des  Marez  is  our  authority, 
with  his  elaborate  and  scholarly  account,  Propriete  Fonciere  dans 
les  Villes  du  Moyen-Ageet  specialement  enFlandre,  in  which  the 
city  of  Ghent  gets,  as  it  deserves,  the  largest  share  of  attention. 
The  tenure  in  the  Netherlandish  towns  is  well  described,  though 
this  is  not  the  main  aim  of  M.  Des  Marez's  treatise.^ 

It  is,  however,  in  Germany  that  the  largest  number  of  works  on 
this  subject  has  been  produced,  though  none  with  urban  tenure  as 
title  or  primary  aim.  In  1861  Arnold  initiated  the  discussion  of 
the  subject  with  his  Geschichte  des  Eigentums  in  den  deutschen 
Stddten,  his  researches  being  Kmited  mainly  to  the  upper  Rhine 
cities,  particularly  Basel.  His  conclusion  concerning  free  urban 
tenure,  that  it  came  from  unfree  holding  and  was  '  domainial ' 
in  its  origin,  has  been  disputed  with  seeming  success  by  various 
authors.  Rosenthal,  in  his  Geschichte  des  Eigenthums  in  der  Stadt 
Wirzburg,  and  especially  Keutgen,  in  his  Deutsche  Stadtverfassung, 
join  issue  with  Arnold  on  the  incidence  and  importance  of  the 

1  For  this  work  see  Maitland  in  English  Historical  Review,  xiv,  pp.  137-141. 


8  BURGAGE  TENURE  IN  ENGLAND 

inherited  and  heritable  lease.  That  urban  tenure  was  not  do- 
mainial  in  its  origin  but  free,  and  that  "  nicht  Hduser  sondern 
GrundstUcke  war  en  Gegenstand  der  Erhleihe  "  *  are  conclusions 
now  generally  accepted.  Though  these  conclusions  confute 
Arnold's  theory  as  to  the  origin,  they  do  not  in  the  least  destroy 
the  accuracy  of  his  description  of  the  facts  of  urban  tenure. 
Dr.  Arnold's  work  is  both  economic  and  historical  and  is  chiefly 
concerned  with  the  Erhleihe,  which  the  author  thought  gradually 
passed  into  Eigenlum;  his  treatment  of  the  tenure  as  such  is 
incidental  but  complete. 

Keutgen's  Untersuchungen  iiber  den  Ursprung  der  deutschen 
Stadlverjassung  is  a  history  of  all  civic  institutions,  Gerichi, 
Burg,  Markt,  Rath,  and  Weide,  and  deals  with  the  political 
rather  than  the  tenurial  side  of  burghal  development;  it  gives, 
however,  information  about  such  customs  as  devise,  separation 
of  land  and  buildings,  tenurial  heterogeneity,  and  other  features 
of  the  tenure.''  Dr.  Keutgen  has  since  compiled  a  source  book 
of  town  charters  and  Stadtrechte,  Urkunden  zur  stddtischen 
Verjassungsgeschichte,  of  great  value  as  a  general  source  of 
material  for  the  constitutional  study  of  mediaeval  German 
cities.  A  particular  source  of  the  same  sort  is  Ennen  and 
Eckertz's  Quellen  zur  Geschichte  der  Stadt  Ko'ln,  which  is  only  one 
of  the  more  notable  works  of  this  kind.  Gobbers's  Die  Erbleihe 
und  ihr  Verhdltniss  zum  Rentenkauf  im  mittelalterlichen  Koln,^ 
in  which  the  author  assigns  to  leases  for  Hfe  or  a  term  of  years 
the  same  effect  that  Arnold  credits  to  the  heritable  lease,  is  of 
considerable  importance  in  the  literature  of  our  subject. 
Dr.  Gobbers's  conclusions  are  sharply  attacked  and  apparently 
confuted  by  Keutgen.  Nearly  all  these  works  are  polemical, 
Arnold's  Eigentum  and  Keutgen's  Urkunden  of  course  excepted, 
and  all  lay  much  stress  on  the  origin  of  urban  tenure.  Des  Marez 
and  Genestal  argue  and  discuss  at  as  great  length  as  the  German 
writers.       Small  space  will  be  given  in  the  pages  which  follow 

'  Keutgen,  Stadlverfassung,  pp.  1 21-122. 

*  See  Professor  Maitland's  notice  of  the  book  in  English  Historical  Review, 
xi,  pp.  13-19. 
'  \n  Zeilschrijlder  Savigny-Stiftung  fiir  Rechtsgeschichte,  iv,  3  (1883),  pp.  130-214. 


INTRODUCTION  9 

to  such  profitless  ploughing  of  desert  sands.  With  such  discus- 
sion this  essay  will  have  nothing  to  do  except  in  the  conclusion, 
and  then  only  to  the  extent  of  trying  to  make  it  clear  that  the 
development  of  feudalism  in  England  was  antedated  by  a  system 
of  land-holding  in  the  boroughs  which  later  was  called  the  burgage 
tenure. 

The  chief  sources  for  a  description  of  burgage  tenure  in  England 
fall  into  two  divisions,  those  which  are  central  in  their  origin  and 
those  which  are  local.  As  to  the  material  of  the  sources  no  classi- 
fication can  be  made.  Sources  which  are  local  in  their  origin, 
as  the  various  borough  histories,  sometimes  draw  their  material 
from  all  quarters,  while  sources  which  are  central  in  origin,  as 
the  Appendixes  to  the  Reports  of  the  Royal  Commission  on 
Historical  Manuscripts,  are  local  in  their  subject-matter.  Char- 
ters, with  few  exceptions,  are  central,  they  come  from  the  king; 
borough  customals  are  peculiarly  local.  A  large  amount  of  the 
source-material  for  our  subject,  perhaps  a  third,  comes  from  the 
borough  charters  and  customals,  together  with  such  brief  accounts 
of  rents  and  connected  matters  as  are  given  in  compilations  of 
town  records  and  in  the  local  histories.  With  some  notable 
exceptions,  which  can  be  found  by  consulting  Gross's  Bibliog- 
raphy of  British  Municipal  History,  these  local  histories  are 
only  so  much  dead  weight  on  library  shelves;  vexatious  to  the 
student  because  of  their  disorderhness  and  wordiness;  lacking 
most  of  what  histories  should  contain;  and  containing  much 
that  histories  should  omit. 

Central  sources  of  great  though  sometimes  unintentional 
importance  are  Domesday  and  the  first  or  royal  part  of  Liber 
Winton',  valuable  for  an  early  period  of  the  tenure;  the  Calendars 
of  Patent  and  Charter  Rolls,  of  Inquisitions  post  mortem  and  ad 
quod  damnum  ;  the  Appendixes  to  the  Reports  of  the  Commis- 
sion on  Historical  Manuscripts,  useful  for  the  purely  economic 
side  of  the  tenure ;  Rotuli  Hundredorum  ;  Chartae  Hiberniae,  pub- 
lished by  the  Irish  Record  Commission  and  containing  the  bulk 
of  the  charters  to  the  boroughs  of  Ireland;  and  the  Placitorum 
in  Domo  Capitulari  Westmonasteriensi  asservatorum  Abbreviatio. 
In  addition  and  supplementary  to  these  are  the  publications, 


lO  BURGAGE  TENURE  IN  ENGLAND 

mostly  local  in  scope,  by  private  societies  or  persons,  as  the 
Yorkshire  Inquisitions;  Hardy's  Rotuli  Chartarum;  Madox's 
Firma  Burgi;  and  some  of  the  works  in  the  Rolls  Series,  as  Year 
Books,  Munimenta  Gildhallae,  and  Le  Domesday  de  Gippewyz. 

In  this  essay  the  aim  will  be  a  specific  description  of  urban 
tenure  in  mediaeval  England,  avoiding  speculation  as  to  its  origin, 
and  dealing  only  with  the  facts  as  they  are  found.  The  order  of 
treatment  will  be  first  the  connection  between  and  comparison 
of  the  burgage  and  the  feudal  tenure  as  regards  the  extent  to 
which  the  former  was  affected  by  the  incidents  and  other  con- 
comitants of  the  latter,  or  by  the  incidents  of  villeinage  if  such 
should  be  shown  to  have  existed  in  boroughs.  The  purely 
economic  phases  of  the  tenure  will  next  be  considered,  such  as 
the  amounts  and  incidence  of  the  original  or  quit-rents,  and  in 
addition  rents  and  prices  of  realty  in  the  boroughs.  This  will 
be  followed  by  a  discussion  of  what  was,  perhaps,  the  most  im- 
portant feature  of  the  tenure — its  modern  aspect,  with  mediaeval 
modifications,  in  regard  to  freedom  of  sale  and  of  devise.  At 
the  close  the  foregoing  material  will  be  drawn  on  for  deductions 
and  conclusions,  and  in  addition  the  urban  tenure  in  England 
will  be  compared  with  that  in  parts  of  France,  ir  the  Netherlands, 
and  in  Germany.  As  it  is  in  the  last  country  that  burgage  tenure 
finds  its  nearest  counterpart,  and  as  the  tenure  there  has  not 
been  directly  treated  heretofore,  an  Appendix  will  be  devoted  to 
a  short  account  of  the  tenure  in  the  German  cities. 


CHAPTER   I 

THE  INCIDENTS  OF  BURGAGE  TENURE 

The  prevailing  land  tenure  of  the  middle  ages  and  the  normal 
mediaeval  land  law  of  northern  and  western  Europe  are  feudal. 
Nowhere  is  feudalism  more  wide-spread  or  more  uniform  than 
in  England;  so  all-pervading  indeed  that  even  socage  tenure 
must  accept  the  greater  number  of  its  incidents.  Such  being 
the  case,  it  seems  logical  and  natural,  when  other  than  the  ruling 
tenures  are  treated,  to  deal  with  them  in  accordance  with  their 
resemblance  to  or  differences  from  the  classic  tenure  of  mediaeval 
Europe,  whether  that  treatment  concern  more  the  legal,  the 
economic,  or  the  historical  side  of  urban  tenure.  With  this 
threefold  aspect  of  the  subject  in  view  we  shall  first  regard  the 
incidents  of  burgage  tenure  as  viewed  in  the  light  of  feudal  tenure. 

The  Three  Ams:     Ransom,  Knighting,  Marrying 

The  ransom  aid  may  be  briefly  dismissed.  Only  once  was  it 
required  to  redeem  an  English  king  from  captivity,  and  on  this 
occasion  the  royal  boroughs,  where  the  king  was  lord,  provided 
their  share  under  the  form  of  a  tallage.^  There  were  many 
small  boroughs,  however,  on  baronial  and  episcopal  estates; 
and  while  the  illegality  of  private  war  in  England,  or  the  sacred- 
ness  of  his  office,  lessened  the  chances  of  baron  or  churchman 
to  become  a  prisoner  of  war  within  the  realm,  such  opportunities 
in  foreign  war  by  no  means  passed  neglected.  Even  in  such  a 
case,  however,  no  aid  was  levied.  A  tallage,  unincidental  to 
the  tenure,  took  its  place. 

The  knighting  and  marrying  aids  were  unknown,  the  little 
baronial  borough  of  Castle  Rising  excepted.  Early  in  the  thir- 
teenth century  Hugh  of  Albini,  Earl  of  Sussex,  granted  burghal 
privileges  to  the  townsmen  of  Castle  Rising,  and  among  the  said 

^  Stubbs,  Constitutional  History  of  England  (1880),  i,  p.  564. 


12  BURGAGE  TENURE  IN  ENGLAND 

*  privileges  '  was  this:  "  if  the  lord  make  his  eldest  son  a  knight, 
or  his  eldest  daughter  be  married,  then  the  burgesses  shall  give 
him  reasonable  help."  ^  This,  though  certainly  an  aid,  is  rather 
an  occasion  for  taking  a  tallage  than  a  service  due  as  an  incident 
of  the  tenure;  it  lies  on  the  burgesses  or  corporate  body  rather 
than  on  the  burgage  tenements,^ 

Marriage 

This  incident  is  usually  considered  along  with  wardship;  and 
in  the  feudal  tenure  the  two  are,  as  it  were,  complementary,  one 
often  entaiUng  the  other.  This  could  never  be  the  case  with 
burgage  tenure,  which  was  free  from  the  marriage  incident. 
Most  of  the  older  boroughs,  the  boroughs  by  prescription,  appar- 
ently have  never  even  heard  of  marriage.  Their  customals 
ignore  it.  The  newer  or  created  boroughs,  especially  those  with 
baronial  or  episcopal  lords,  often  have  this  incident  mentioned 
in  their  charters,  but  only  as  an  obligation  from  which  their 
tenure  is  free. 

At  Cardiff  a  burgess  "  may  at  his  will  marry  his  son  or  his 
daughter,  without  having  to  seek  license  from  any  one,"  '  and 
though  the  wording  of  their  charters  may  be  different,  the  same 
is  the  case  at  Preston,^  Tewkesbury,^  and  Castle  Rising.^     At 

^  Parkin,  Lynn,  p.  205. 

*  The  customs  were  declared  at  a  survey  made  by  Sir  N.  Bacon,  J.  Hill,  R.  Bux- 
ton, and  R.  Shephard  in  1509.  Hugh  of  Albini  died  Earl  of  Sussex  in  27  Henry  HI. 
From  his  name  he  seems  to  have  been  one  of  the  '  Lusignans  '  and  neither  an 
Englishman  nor  a  Norman. 

Though  Earl  Hugh  knew  little  of  English  burgage  tenure,  James  I  knew  less. 
When  his  daughter,  the  Winter  Queen,  was  married,  he  surprised  the  burgesses  of 
Reading  with  a  demand  for  an  aid.     He  did  not  get  it. 

'  Matthews,  Cardiff  Records,  i,  p.  12.  The  order  here  followed  in  naming  the 
boroughs  is  as  far  as  possible  the  chronological  order  of  their  charters.  The  Cardiff 
charter  dates  frcm  1147-83,  and  seems  to  be  a  traverse  of  some  existing  Norman 
customa. 

*  I-ishwick,  Preston,  p.  16,  and  Harwick,  Preston,  p.  260:  "  if  a  burgess  marry 
his  daughter  or  granddaughter  to  any  one,  he  may  marry  her  without  the  license 
of  any  one."  The  charter  dates  from  about  1 173,  and  follows  probably  the  Breteuil 
custom. 

*  Bennett,  Tewkesbury,  p.  321.     Tewkesbury  and  Cardiff  had  the  same  customs. 

*  Parkin,  Lynn,  p.  205;  the  burgesses'  "  heyres  shall  marry  themselves  where- 
soever they  like." 


THE  INCIDENTS  OF  BURGAGE  TENURE  1 3 

Dimwich  in  1 200  marriage  was  free  to  all  but  widows,  who  needed 
*  the  counsel  of  their  friends.'  ^  In  1215  this  disability  was 
removed.^  At  Whitby  a  widow  might  not  marry  without  the 
consent  of  the  abbot,  who  was  lord  of  the  borough.^  There  was 
no  marriage  at  Cork  *  or  Kilkenny,^  but  at  the  latter  place  a 
saving  clause  in  the  charter  prevented  one  who  held  by  feudal 
tenure  —  or  socage  in  some  cases  —  without  the  borough,  and  by 
burgage  within,  from  escaping  feudal  obHgations  by  pleading 
burghal  freedom.^  The  Drogheda  charter  of  1253  has  the  same 
clause ;  ^  the  charters  to  Limerick  *  and  Wexford  show  the  same 
condition  in  respect  to  the  marriage  incident.^  This  limitation 
on  freedom  from  marriage,  though  never  found  in  customals 
and  seldom  in  charters,  must  be  taken  for  granted  unless  there 
is  proof  that  burgesses  were  freed  therefrom,  but  it  is  not  an 
incident  of  burgage  tenure  and  would  fall  hghtly  on  burgesses 
proper,  who  seldom  held  outside  the  boroughs.  Its  efficacy  was 
tested  later  when  outsiders  began  to  acquire  burgages. 

From  direct  statement  and  from  implication  it  is  plain  that  a 
burgess  who  was  also  a  holder  under  military  tenure  was  Hable 
to  all  the  burdens  of  feudahsm,  unless  they  could  be  avoided  by 
a  grant  from  the  lord  of  the  borough  or  evaded  by  a  special  agree- 
ment.    The  former  was  the  case  at  the  Cinque  Ports,  to  whose 

^  Hardy,  RotuH  Chartariim,  p.  51.  Dunwich  was  a  royal  borough.  Possibly 
King  John  did  not  think  a  widow  competent  to  make  a  second  marriage  unassisted, 
but  probably  the  clause  was  inserted  as  a  measure  of  protection  to  semi-orphans. 

*  Ibid.,  p.  211.  The  Dunwich  of  that  day,  with  its  counselled  widows,  lies  under 
the  sea. 

'  Atkinson,  Whitby,  p.  321. 

*  Chartae  Hiberniae  (Irish  Record  Com.),  pp.  24-25.  See  also  Caulfield,  Council 
Book  of  Cork,  p.  xi. 

^  Gale,  Corporate  System  of  Ireland,  app.,  p.  xxiii. 

*  The  charter  grants  "  etiam  eisdem  burgensibus  matrimonium  contrahere 
sibi  et  filiis  et  filiabus  suis  et  viduis  sine  licentia  dominorum  suorum,  nisi  forte 
firmas  forinsecas  tenuerint  de  me  in  capite  extra  buigum."  Gale,  app.,  p.  xxiii: 
all  these  charters  may  be  found  in  Chartae  Hiberniae. 

''  Gale,  Corporate  System,  app.,  p.  vi. 

*  Lenihan,  Limerick,  p.  47.  The  first  charter  is  from  Hamo  of  Valois  ;  the 
customs  are  those  of  Dublin. 

'  It  must  not  be  overlooked  that  these  so-called  Irish  boroughs  were  English 
in  all  but  name  and  location,  industrial  and  military  garrisons  in  a  foreign  land-: 
in  most  of  them  an  Irishman  might  not  become  a  burgess. 


14  BURGAGE  TENURE  IN  ENGLAND 

barons  Edward  I  granted  that  "  all  p)ersons  born  within  the 
said  Cinque  Ports  "  (seven  are  named:  Sandwich  is  omitted) 
"  although  they  hold  lands  without  the  liberty  of  the  Ports  by 
such  a  service  that  their  marriages  should,  by  reason  of  their 
minority,  belong  to  the  king,  may  nevertheless  marry  according 
to  the  liberty  of  the  Ports  .  .  .  saving  the  right  of  any  other."  ^ 
This  saving  others'  rights,  perhaps  characteristic  of  Edward  I, 
refers  to  the  fact  that  in  the  royal  boroughs  there  might  be  many 
lords  in,  but  not  of,  the  borough,  standing  as  mesne  lords  between 
the  burgess  and  the  king.^  Nearly  a  century  before  this  King 
John  had  given  the  same  privileges  to  the  Bristol  burgesses,' 
and  a  little  later  to  those  of  Dublin.^  It  is  almost  needless  to 
say  that  he  did  not  save  others'  rights,  and  only  fair  to  say  that 
his  action  was  quite  lawful,  for  he  was  the  lord  of  the  borough. 
At  any  rate  few  burgesses  would  profit  thereby;  if  a  burgess 
should  happen  to  hold  under  feudal  tenure  he  might,  and  some- 
times did,  avoid  its  incidents  by  special  agreement.^ 

*  C.  p.  R.,  a.  1298,  p.  348.  Twenty  years  before  this  Edward  had  granted 
to  the  barons  of  Deal  that  they  might  "  have  forever  this  liberty,  viz.,  that  neither 
we  or  our  heirs  shall  have  .  .  .  marriages  of  their  heirs,  by  reason  of  their  lands 
which  they  hold  within  the  Ports  ...  of  which  neither  we  nor  our  predecessors 
have  had  marriage  in  times  past."  Chapman,  Ded,  p.  8.  That  is,  the  king  grants 
rights  which  he  never  had  to  those  who  always  had  them.  In  the  Cinque  Ports, 
as  in  many  other  boroughs,  a  minor  heir's  marriage  was  regulated  by  law.  The 
guardian  of  such  persons  must  obtain  the  consent  of  the  mayor  and  jurats  to  their 
marriage?,  otherwise  he  was  liable  to  a  penalty  of  £100.  Boys,  Sandwich,  p.  sib; 
Lyon,  Dover,  i,  p.  xlv. 

^  This  might  be  the  case  in  baronial  and  abbatial  boroughs  also.  The  king 
might  be  a  holder  between  abbot  or  baron  and  burgess:  he  was  such  at  Bury 
Saint  Edmunds. 

'  Scyer,  Charters  of  Bristol,  p.  8,  c.  1188:  he  granted  "  quod  possint  maritare 
se  ct  filios  et  (ilias  et  viduas  sine  licentia  dominorum  suorum  "  and  in  addition 
"  quod  nullus  dominorum  suorum  propter  forinsecas  terras  habeat  .  .  .  dona- 
lionem  filiorum  .  .  .  filiarum  vel  viduarum."  It  has  been  suggested  (Scyer, 
Memoirs  of  Bristol,  i,  p.  513)  that  this  clause  was  to  relieve  burgesses  who  held 
of  other  lords  than  the  king  from  these  lords'  demands  of  '  marriage.'  The  clause, 
however,  does  not  concern  burgesses  who  hold  burgages  only,  the  previous  clause 
is  for  them.  It  states  that  a  Bristol  burgess  may  hold  under  outside  tenures  and 
not  be  subject  to  '  marriage.' 

*  Walsh,  Dublin,  i,  p.  48,  o.  1173:   as  a  rule  whatever  Bristol  has  Dublin  has. 

*  In  1270  A.,  daughter  of  the  lord  of  Wodehall,  granted  to  T.,  burgess  of  New- 
castle, the  town  or  vill  of  Swarland  with  homage  and  service  of  various  men; 
T.'s  heirs  were  not  to  be  subject  to  marriage.     C.  C.  R.,  ii,  pp.  169-170. 


THE  INCIDENTS  OF  BURGAGE  TENURE  1 5 

It  is  only  natural  to  expect  something  in  regard  to  marriage 
in  the  charters  of  some  of  those  humble  boroughs  which  had  been 
vills  at  a  period  not  long  before.  Though  the  fact  of  burghal 
freedom  precluded  marriage  yet  the  new  burgesses  might  rest 
easier  with  a  guarantee  in  the  charter.  Sometimes,  though 
not  often,  a  clause  therein  renounced  the  lord's  right  to  marriage, 
as  at  Christchurch  Twynham  ^  and  at  Egremont.^  Occasionally, 
and  apparently  as  an  afterthought,  a  customal  of  an  older 
borough  states  that  there  is  no  marriage,  and  implies  that  there 
never  has  been  any.^ 

Wardship 

'  Marriage  '  is  simply  unknown  to  burgage  tenure.  As  to 
Wardship  the  case  is  very  different;  yet  the  wardship  of  the 
burgage  tenure  had  no  connection  with  the  wardship  of  feudahsm. 
Nor  was  urban  wardship  always  the  same ;  it  varied  from  borough 
to  borough,  and  the  borough  lord  had  no  voice  in  its  working, 
though  sometimes,  as  at  Berwick  and  Dover,  he  oversaw  its 
operation.^  As  in  the  case  of  marriage,  holding  under  both  the 
burgage  and  the  feudal  tenure  sometimes  freed  burgesses  from 
the  wardship  of  the  latter,  though  not  as  a  matter  of  course; 

^  C.  P.  R.,  a.  1315,  p.  220.  Inspeximus  of  a  charter  from  Baldwin  de  Redvers, 
E^rl  of  Devon:  "  as  the  said  free  burgesses  have  been  in  the  times  of  his  father  and 
himself  free  from  ransom  of  their  sons  and  daughters  "  the  earl  promises  that "  no 
ransom  .  .  .  shall  be  extorted  from  them  by  him  or  his  .  .  .  bailiffs." 

^  Bateson,  Borough  Customs,  ii,  p.  85:  "  non  dabit  merchet  ";  merchet,  however, 
is  improperly  used  here,  the  reference  is  to  childwite.  At  Tutbury  (Mosley, 
Tuibury,  p.  368)  "  the  tenants  shall  pay  no  mortmaine  "  (mainmorte). 

At  Manchester  in  1574  '  good  orders  '  were  made  for  marriages  by  consent 
of  the  high  steward  and  the  burgesses'  jury  {Court  Leet  Records  of  Manchester, 
I,  p.  262),  whatever  that  may  mean. 

'  As  at  Ipswich:  Bacon,  Annalls  of  Ipsmche,  p.  34.  Why  then  the  grants  of 
freedom  from  '  marriage  '  in  patents  and  charters  at  Bristol,  Dublin,  and  the 
Cinque  Ports  ?  Because  the  first  grants,  simply  statements  of  customs,  are  and 
are  meant  to  be  only  vehicles  for  second  grants,  freeing  outside  holders  because  of 
their  burghal  tenurial  status. 

At  Shrewsbury  it  had  at  one  time  cost  a  maid  los.  to  get  married  and  a  widow, 
20s.  {D.  B.,  f.  252a),  but  there  is  no  trace  of  '  marriage  '  in  King  John's  day.  Owen 
and  Blakeway,  Shrewsbury,  i,  p.  86. 

*  The  wardship  of  a  tenement  and  the  wardship  of  an  heir  to  that  tenement  are 
sometimes  separated. 


1 6  BURGAGE  TENURE  IN  ENGLAND 

such  freedom  was  the  result  of  a  royal  grant  to  a  few  boroughs, 
was  limited  to  the  person,  and  did  not  extend  to  lands  held  out- 
side the  borough,  the  lord  of  such  lands  retaining  them  in  custody. 
Bristol,'  Dublin,'  and  possibly  the  Cinque  Ports '  had  this 
privilege,  which  was  a  saving  clause  in  the  burgess's  interest, 
not  the  lord's,  who  got  only  the  wardship  of  his  foreign  lands 
but  not  the  custody  of  the  person  of  the  ward  or  of  the  ward's 
tenements  in  the  borough, 

A  few  of  the  boroughs  of  Ireland  had  the  same  freedom  as 
Dublin  in  respect  to  wardship,  but  modified  in  such  a  way  that 
it  was  probably  only  a  condition  designed  to  prevent  military 
tenants  who  also  held  in  the  borough  under  its  tenure  from  evad- 
ing their  feudal  obligations/  At  times  wardship  was  avoided 
by  agreement,  as  in  the  case  of  a  Newcastle  burgess  who  held  one 
or  more  manors  in  the  foreign.*  The  rule,  however,  was  that  a 
foreign  tenure  carried  its  obligations  with  it,  and  a  burgess  who 
held  by  a  tenure  outside  a  borough  was  in  wardship  during  minor- 
ity if  that  tenure  entailed  it.^ 

In  most  of  the  boroughs  wardship  of  both  person  and  tenements 
was  a  private  concern  except  in  cases  of  intestacy.     Some  cus- 

*  Seyer,  Bristol  Charters,  pp.  8,  9:  "  nullus  dominorum  suorum  propter  for- 
insecas  terras  habeat  custodiam  .  .  .  filiorum  .  .  .  sed  tantum  custodiam  tene- 
mentorum  suorum  quae  sunt  de  feodo  suo,  donee  aetatem  habeant." 

*  Walsh,  Dublin,  i,  p.  379. 

*  Chapman,  Deal,  p.  8;  Lyon,  Dover,  i,  pp.  xlii,  xlv.  There  was  nothing  new  in 
the  grant  to  the  Cinque  Ports;  the  king  merely  renounced  "  wardship  of  heirs  by 
reason  of  lands  .  .  .  within  the  Ports  of  which  neither  we  nor  our  predecessors 
have  had  wardship."     Cf.  a  like  statement  in  regard  to  marriage. 

*  Gale,  Corporate  System  oj Ireland,  app.,  p.  xxiii:  as  at  Kilkenny  where  the  liberty 
of  Dublin  is  given  in  regard  to  wardship  '  nisi  de  me  (W.  Marshal],  sicut  praedictum 
est,  extra  burgum  in  capite  tenuerint.'  At  Waterford  (C.  C.  R.,  i,  p.  158,  a.  1232) 
a  burgess's  foreign  lord  had  wardship  of  tenements  only. 

'  C.  C.  R.,  ii,  p.  170:   he  avoided  marriage  as  well. 

'  In  1279,  'D  t^ic  course  of  a  suit  in  the  Hustings  with  reference  to  the  ownership 
of  messuages  in  London,  a  charge  was  made  that  the  feoffment  had  been  obtained 
by  fraud  practised  during  the  ward's  minority  "  while  she  was  in  the  custody  of 
R.  in  the  County  of  Devon  (where  she  has  other  lands),  to  whom  the  said  custody 
was  demised  by  Henry  HI  "  (C.  P.  R.,  a.  1279,  p.  406).  These  lands  in  Devon 
may  have  been  held  under  military  tenure,  but  socage  tenure  was  not  always 
exemf)t  from  wardship,  as  in  the  case  of  a  "  messuage  ...  in  Botesford  and 
Plympton,  county  Devon,  .  .  .  the  same  .  .  .  held  in  socage  by  the  sole  service 
of  id.  a  year  of  H.,  a  minor  in  the  king's  custody  "    (C.  P.  R.,  a.  1294,  p.  126). 


THE  INCIDENTS  OF  BURGAGE  TENURE  IJ 

tomals  however  forbad  any  immediate  lord  of  a  tenement,  usually 
called  the  '  chief  lord  '  ^  from  acting  as  guardian,  as  at  Ipswich,^ 
Dunwich,^  and  Castle  Rising.^  Nearly  all  the  borough  cus- 
tomals  provided  for  wardship  of  persons  and  tenements.  At 
Bury  Saint  Edmunds  at  one  period  the  nearest  relation  was 
guardian,^  at  another  the  mayor  and  aldermen  had  wardship 
of  orphans.^  At  Nottingham,  in  one  case  at  least,  an  heir 
appointed  his  own  guardian ;  ^  at  Hedon  the  mayor  and  coroner 
took  charge  of  tenements  falUng  to  those  under  age.^ 

At  Canterbury  the  wardship  of  orphans  was  given  by  the 
'  bailiffs  and  xii '  to  the  nearest  in  blood  to  whom  the  heritage 
might  not  go.^  The  sams  custom  obtained  at  Ipswich,  and  a 
guardian  was  held  strictly  responsible  for  waste  to  an  heir's 
property.^"  Sandwich,  and  by  impUcation  the  rest  of  the  Cinque 
Ports,  had  the  same  custom  as  Ipswich  and  Canterbury,  and  in 
this  case  the  king  seems  to  have  acted  as  an  overseer  of  the  town 
magistrates,  holding  them  to  a  strict  performance  of  their  duty, 
intimating  that  he  has  been  informed  that  they  have  been  dereHct 
therein,  and  insisting  that  the  civic  authorities  not  only  shall 
not  act  as  guardians  themselves  but  also  shall  not  allow  others 
so  to  act  who  have  any  possible  interest  in  the  minor's  heritage. ^^ 

*  Sometimes  capital  lord,  the  one  next  the  actual  holder. 

^  Le  Domesday  de  Gippewyz,  pp.  89-90;  Bacon,  Annalls  of  Ipswiche,  p.  34:  "  nor 
shall  any  suche  cheife  lord  have  any  .  .  .  ward." 

^  Hardy,  Rotuli  Chartarum,  p.  211:  no  lord  shall  have  '  custodia.' 

*  Parkin,  Lynn,  p.  205 :   "  his  kin  or  next  cousin  by  the  mother's  side." 

*  Arnold,  Memorials  of  St.  Edmund's  Abbey,  i,  p.  305:  "  consuetudo  extitit 
ratione  burgi  ut  proximus  consanguineus  habeat  wardam  pueri  cum  haereditate." 

*  Ibid.,  iii,  p.  305;  from  the  imconfirmed  charter  of  1327. 
^  Stevenson,  Records  of  Nottingham,  i,  p.  71. 

*  Boyle,  Hedon,  app.,  p.  Ixix. 

'  H.  M.  C,  Rep.,  9,  pt.  I,  p.  171:  this  is  the  law  of  wardship  for  the  socage 
tenure  in  England  and  (later)  of  the  feudal  tenure  in  Normandy. 

"  Bacon,  Annalls  of  Ipswiche,  p.  27. 

"  Boys,  Sandwich,  pp.  514-516,  a.  1351.  In  consideration  of  the  fact  that  the 
king  was  Edward  III,  one  must  understand  royal  government  or  some  fraction 
thereof  in  place  of '  king.'  The  wrongs  of  orphans  could  mean  little  to  Edward  III, 
at  that  time  still  flushed  from  Crecy.  Perhaps  the  borough  magistrates  also  felt 
that  victory  entailed  immunity  from  legal  penalties:  the  Cinque  Ports  were 
Edward  Ill's  right  hand  in  his  wars  with  France.  The  proclamation  to  the  mayor, 
and  jurats  is  to  the  effect  that  the  king  having  heard  that  orphans  have  been  ill- 


1 8  BURGAGE  TENURE  IN  ENGLAND 

The  whole  proceeding  was  probably  suggested  by  Edward  I's 
dealings  with  the  burgesses  of  Berwick,  the  mayor  and  bailiflfs 
of  that  place  being  charged  with  the  execution  of  the  part  of  the 
charter  relating  to  wards  and  with  a  supervision  over  guardians.^ 
The  king  was  the  lord  of  Berwick  and  the  Cinque  Ports,  all  being 
royal  boroughs,  but  his  assumption  of  the  position  of  guardian- 
in-chief  had  nothing  feudal  about  it;  the  king  acted  here  as  head 
of  the  state  and  not  as  a  feudal  lord,  and  the  result  of  this  action 
was,  in  theory  at  least,  to  prevent  the  making  profit  of  an  heir's 
expectations  at  the  expense  of  his  inheritance.^ 

The  age  of  majority,  when  wardship  ended,  varied  in  different 
boroughs  and  even  in  the  same  borough  at  different  periods. 
Very  often  it  was  determined  not  by  years  but  by  ability  '  to 
number'  (2od.;  infrequently  i2d.)  'and  measure'  (a  yard  or 
an  ell  of  cloth).  The  usual  age  was  12  or  14;  at  a  few  boroughs 
it  was  21.' 

Relief 

From  this  incident  the  older  and  larger  boroughs  were  free 
in  the  age  of  charters  and  customals,  and,  using  the  term  in  its 
exact  sense  of  a  pa>Tnent  of  money  from  an  heir  previous  to  his 

treated,  it  is  his  command  that  the  mayor  and  jurats  "  do  in  our  name  and  by  our 
authority  "  appoint  guardians,  etc.  (p.  515)  "  and  our  will  is  that  neither  the  mayor 
nor  jurats  ...  do  have  the  care  and  custody  of  orphans,  unless  specially  appointed 
by  the  will  of  the  ancestor  and  having  no  possible  interest  in  the  inheritance  " 
(P-  515)-  The  town  magistrates  embodied  these  orders  in  a  resolution  and  governed 
themselves  accordingly. 

*  Scott,  Berwick,  pp.  246-247. 

*  Private  dealing  in  wardship  and  marriage  seems  to  have  been  very  common 
in  some  of  the  boroughs,  notably  London.  See  R.  R.  Sharpe,  Cal.  of  Letters  from 
Mayor,  etc.,  pp.  160-161,  a.  1368-69.  As  a  result  of  such  transactions  the  aid  of 
the  royal  government  was  sometimes  invoked  to  prevent  fraud,  as  at  Marlborough: 
C.  /.  M .,  i,  p.  227,  53  Henry  III. 

'  At  Hedon  at  one  date  it  was  16,  at  another  it  was  21  (Boyle,  Hedon,  app., 
p.  Ixix);  at  Ipswich  14,  sometimes  12  (Bacon,  Annalls  of  Ipswiche,  pp.  72,87,92; 
Le  Domesday  de  Gipprwyz,  p.  88),  but  this  '  age  '  was  proved  by  '  numbering  and 
measuring';  at  Yarmouth  21  (Swinden,  Yarmouth,  p.  155);  at  Hereford  al)ility 
to  number  and  measure  {Johnson,  Ancient  Customs  of  Hereford,  p.  25);  at  Canter- 
bury 15  (II.  M.  C,  Rep.,  g,  pt.  I,  p.  171).  See  also  Pike,  Year  Book  12-13  lldward 
III,  p.  236;  Parliamentary  Papers,  1835,  xxvi,  p.  2838;  Chartae,  Privilegia,  et 
Immunitates,  pp.  80-82,  86;  Gilbert,  Calendar  of  Records  of  Dublin,  i,  pp.  225, 
329;  Placil.  \Yestmon.  Abbr.,  p.  224,  roll  77;  Mrs.  J.  R.  Green,  Town  Life  in  the 
Fifteenth  Century  (1894),  i,  p.  200;   Bracton,  De  Legibus,  v,  p.  177. 


THE  INCIDENTS  OF  BURGAGE  TENURE  1 9 

entering  on  an  inherited  estate,  it  seems  that  most  of  them,  if 
not  all,  had  always  been  free.^  A  few  customals  and  those  charters 
to  created  boroughs  which  go  into  particulars  ^  state  the  absence 
of  this  incident.  Such  was  the  case  at  Ipswich,^  Cardiff,^  and 
York  with  its  suburbs.^  ReHef  was  unknown  in  the  boroughs 
of  Ireland,  whose  charters  nearly  always  deny  the  presence  of 
this  incident,  as  at  Rathcool,  where  the  Archbishop  of  DubHn's 
charter  stated  that,  as  the  burgesses  had  never  been  accustomed 
to  pay  relief,  they  should  always  be  exempt  therefrom.^  ReHef 
did  not  exist  at  Romney,^  or,  probably,  at  any  of  the  Cinque 
Ports,  at  Kidderminster,^  Tewkesbury,*  Barnstaple,^"  or  Here- 
ford,!^  or,  in  the  later  part  of  our  period,  at  Bury  Saint  Edmunds. 
This  is  the  rule  in  the  older  boroughs,  whose  customs  usually 

^  The  citizens  of  York  paid  no  relief  {D.B.,  i,  f.  298a);  there  is  no  reason  why 
York  should  have  been  exceptional,  in  the  Danelaw  at  least. 

^  Most  of  these  are  only  more  or  less  perfect  copies  of  the  customals  of  older 
boroughs. 

^  Bacon,  Annalls  of  Ipswiche,  p.  34:  "  nor  shall  any  suche  cheife  lord  have  any 
relief." 

*  Matthews,  Cardiff  Records,  i,  p.  12:  "  no  burgess  shall  give  for  his  burgage  an 
heriot  or  relief."  Ipswich  was  a  borough  by  prescription,  the  source  of  the  quota- 
tion is  the  customal;  Cardiff  was  a  borough  created  by  charter,  embodying  prob- 
ably the  customal  of  some  Norman  ville.     The  result  is  the  same. 

*  Widdrington,  Analccta  Eboracensia,  p.  121.  At  Bootham,  in  an  inquest- 
finding  of  1286-90,  the  citizens  say  that  "  the  tenements  there  .  .  .  are  in  all 
things  of  the  same  condition  and  custom  as  the  other  tenements  of  the  city,  and  they 
pay  no  relief,"  a  finding  consonant  with  the  Domesday  record. 

^  Gale,  Corporate  System,  app.,  p.  x:  "  quia  de  burgagiis  suis  relevia  dare  non 
consueverant  eis  eadem  remissimus  .  .  .  ita  quod  de  dicto  burgagio  nunquam  de 
cetero  relevium  exigatur  sicut  nee  unquam  ante  tempus  nostrum  exigi  consuevit." 
Rathcool,  Limerick,  Waterford,  and  Cork  have  the  customs  of  Dublin  and  Bristol, 
where  there  was  no  relief.  The  rest  of  the  boroughs  of  Ireland  have  the  laws  of 
Breteuil,  an  extinct  Norman  ville,  where  relief  was  likewise  unknown. 

^  Lyon,  Z)oi;er,  ii,  p.  320:   "  no  .  .  .  relief  .  .  .  shall  be  due  to  no  lord  of  the  fee." 

8  Burton,  Kidderminster,  p.  58. 

'  Bennett,  Tewkesbury,  p.  321. 

^^  Chanter  and  Wainwright,  Barnstaple  Records,  i,  p.  113;  relief  existed  among 
extra-burghal  tenants  in  1274,  but  there  is  no  proof  of  its  presence  in  the  borough. 

"  Johnson,  Customs  of  Hereford,  p.  25:  no  '  foreign  service.'  —  In  1315  a  holder 
of  a  tenement  in  the  city  was  impleaded  because  no  relief  had  been  paid,  the  chief 
lord  (another  burgess)  maintaining  that  such  was  the  custom.  He  lost  his  suit, 
however,  because  "  nullus  sic  tenens  in  liberum  burgagium  in  eadem  civitate 
solebat  dare  Regi  relevium  "  (Madox,  Firma  Burgi,  p.  257,  Herefordia). 


20  BURGAGE  TENURE  IN  ENGLAND 

neglect  the  subject  or  exclude  it  by  inference  in  stating  the  rule 
for  the  transfer  of  inheritance.* 

There  were,  however,  boroughs,  created  as  a  rule,  and  of  small 
importance  in  the  middle  ages,  where  relief  existed.  It  was 
probably  an  incident  of  the  tenure  at  Leicester,  where  the  term 
occurs  in  grants  and  transfers  of  tenements  within  the  borough.' 
ReUef  was  owed   at   Dartmouth,'   Exeter,*   and   at   Denbigh,' 

'  In  the  absence  of  a  customal,  records  of  the  transfer  of  tenements  often  show 
the  absence  of  this  incident.  These  grants  and  transfers,  however,  seem  at  times 
to  be  drawn  with  intent  to  deceive,  or  more  probably,  the  grantors,  as  is  the  fashion 
with  the  ignorant,  fell  upon  forms  of  words  which  meant  nothing  at  all,  as  far  as 
the  users  thereof  were  concerned.  For  instance  in  1352  a  widow  in  King's  Lynn, 
at  that  time  Bishop's  Lynn,  left  by  will  various  rents  and  a  tenement  in  the  borough 
to  her  daughter  for  "  the  whole  term  of  her  life,  together  with  the  reliefs  ...  of 
aU  that  tenement  "  (H.  M.  C,  Rep.,  11,  app.,  pt.  3,  p.  232).  Lynn  had  the  privi- 
leges of  Oxford  as  stated  in  a  charter  from  the  bishop  of  Norwich  in  5  John.  Char- 
ters to  episcopal  and  abbatial  boroughs  nearly  always  contain  saving  clauses;  it 
seemed  hard  for  a  bishop  or  an  abbot  to  be  perfectly  frank  or  generous,  and  the 
bishop  added  this:  "  salvis  ipso  episcopo  .  .  .  et  comiti  Arundel  et  hereditates  .  .  . 
libertates  et  consuetudines  quas  ipsi  in  praedicta  villa  antiquitus  habuerunt  " 
(Parkin,  Lynn,  p.  117).  The  customs  saved  seem  to  be  nomination  of  the  bailifif, 
collection  of  rents  of  assize,  court  and  court  leet  profits  {ibid.,  p.  156).  There  is  no 
word  of  relief  even  when  the  bishop  gave  the  burgesses  his  forfeitures,  etc.,  in  1404. 
No  other  record  of  the  transfer  of  a  tenement  {ibid.,  pp.  118-200)  mentions  relief. 
A  widow's  testimony  shall  not  condemn  a  whole  city. 

In  1273-74  another  widow,  in  Dover  this  time,  bequeathed  reliefs  supposed  to 
arise  out  of  half  an  acre  of  land  in  Charlton  Hundred  (Statham,  Dover  Charters, 
p.  11),  a  small  corner  of  which,  however,  lay  outside  the  Dover  liberties  (Samuel 
Lewis,  A  Topographical  Dictionary  of  England,  7th  cd.,  1848,  i,  p.  551).  Possibly 
she  was  not,  but  probably  she  was,  bequeathing  something  that  did  not  exist. 
It  is  not  likely  that  the  term  is  equivalent  to  casements;  it  would  be  commoner  in 
that  case. 

*  Bateson,  Records  of  Leicester,  i,  p.  382:  burgesses  sometimes  grant  rents  and 
reliefs  arising  out  of  a  tenement  to  other  burgesses.  In  this  case  the  lord  of  the 
borough  would  be  entitled  to  relief  when  an  original  burgage  was  transferred  or  if 
he  were  chief  lord.  Henry  V  released  the  mayor  and  community  from  reliefs 
{ibid.,  ii,  p.  227).  Much  faith,  however,  should  not  be  placed  in  Silvcrun,  daughter 
of  Robert  le  Vilen,  who  gave  a  release  from  reliefs  and  homages  in  i2$o  {ibid.,  \, 
P-  2)^2))  \   t^he  Lynn  and  Dover  widows  may  have  influenced  her. 

*  H.  M.  C,  Rep.,  5,  p.  599  (21  Ed.  I):  Gilbert  Fitz-Stephen,  the  lord  of  the 
borough,  in  granting  a  tenement  retained  a  right  to  "  2s.  for  relief  when  falling 
due." 

*  Bateson,  Borough  Customs,  ii,  p.  61:  "  if  one  man  holds  a  burgage  of  another 
by  service,  he  may  sell  it,  saving  the  lord's  right,  and  if  he  sells  it  unconditionally, 
the  relief  is  the  lord's."     This  is  on  its  face  only  an  alienation  fee. 

'  Williams,  Denbigh,  p.  307.      The  charter  was  given  by  Henry  de  Lacy,  and 


THE  INCIDENTS  OF  BURGAGE  TENURE  21 

where  it  was  still  paid,  it  is  to  be  hoped  with  regularity,  in  the 
nineteenth  century.^  It  was  payable  at  Doncaster,  apparently 
only  when  tenements  descended  by  the  law  of  intestacy,^  and 
at  Northampton,  where  it  seems  to  have  been  due  from  those 
who  received  tenements  by  bequest  and  at  the  transfer  of  original 
messuages;  ^  the  amount  was  probably  fixed  at  one  year's  rent 
of  the  messuage.'*  This  incident  is  found  at  Pembroke,^  Bide- 
ford,^  Farnham,''  and  Portsmouth,  where  it  seems  to  have  been 
due  at  the  alienation  of  a  tenement  as  well  as  at  an  heir's  en- 
trance.* At  Reading  the  corporation  took  a  half-year's  rent 
of  a  burgage  as  reHef ;  ^  at  Stockport  this  incident  is  found, ^^ 
at  Manchester  it  was  common. ^^ 

ratified  by  Edward  I  in  1290.  No  Welshman  might  be  a  burgess  in  Denbigh  and 
the  English  "  heirs  and  assigns  ...  of  all  the  burgesses  aforenamed  "  must  pay 
"  to  us  and  to  our  heirs,  the  first  year  after  the  death  of  their  ancestors,  for  the 
burgages  .  .  .  aforesaid,  id.  as  relief."  A  few  messuages  paid  4d.  a  year  and  one 
paid  i6d.  as  rent:  in  each  case  relief  was  the  same. 

^  At  Denbigh  and  its  contributory  borough  Ruthin,  reliefs  of  is.  each  and  usually 
called  heriots,  still  existed  in  1835.     Parliamentary  Papers,  1835,  xxvi,  p.  2185. 

2  Hardy,  Records  of  Doncaster,  ii,  p.  19:  it  was  not  a  general  obligation  (ibid.,  ii, 
p.  20).  In  1506  a  record  of  the  fall  court  leet  states  that  a  burgess  had  left  a  tene- 
ment in  Bramwyth  to  his  son  by  will  but  had  made  no  disposition  of  his  other 
tenements.     A  "  relief  therefore  accrues  of  4s." 

'  Markham,  Liber  Ciistumarum,  p.  26:  if  one  hold  "  lond,  tenement,  or  rente  " 
of  another  "  by  a  litell  servise  of  silver  serteyn  named  "  [i.  e.,  a  fee-farm  or  burgage 
rent],  "  or  bi  graunte  after  the  dethe  of  the  tenaunt "  [  ?  devise],  "  relef  theroffen 
shall  be  geven." 

*  Markham,  Liber  Custumarum,  p.  26.  If  a  tenant  held  more  than  one  tene- 
ment "  of  only  the  chefe  lorde  "  (  ?  one  chief  lord)  he  need  pay  but  one  relief  "  for  all 
tho  tenementis." 

*  C.  P.  R.,  a.  1378,  p.  107:   i2d. 

*  Watkins,  Bideford,  p.  13:   i2d.     Burgage  rents  in  Bideford  were  i2d.  or  6d. 
^  Hall,  Pipe  Roll  of  the  Bishopric  of  Winchester,  a.  1208-09,  p.  38. 

*  East,  Records  of  Portsmouth,  pp.  53-55:  in  1620  a  son  and  a  daughter,  who 
inherit  by  will,  enter  and  owe  relief.  The  incidence  of  the  obligation  seems  uncer- 
tain; in  1620-45  there  were  recorded  6  alienations  with  relief  and  16  without  it. 
Cf .  relief  at  Exeter. 

^  Guilding,  Reading  Records,  iii,  p.  55,  a.  163 1:  it  was  called  heriot. 

^°  Heginbotham,  Stockport,  i,  p.  163,  a.  1622. 

"  Court  Leet  Records  of  Manchester,  i,  p.  204,  a.  1579:  in  one  case  a  relief  of  8s.  6d. 
is  coupled  with  a  rent  of  8s.  9d.  These  court  leet  records  of  the  i6th  century  are 
rather  quaint:  in  1585  the  leet  jury  "  presentant  quod  est  una  equa  coloris  white 
grey  somethinge  fHayebitten  etatis  septem  Annorum  sive  plus."     Ibid.,  i,  p.  253.  • 


22  BURGAGE  TENURE  IN  ENGLAND 

Heriot 

Closely  connected  with  relief  is  heriot,  here  to  be  used  with  its 
strictly  burghal  meaning,  '  some  sort  of  arms,'  a  military  chattel 
in  one  sense,  though  the  records  sometimes  speak  of  a  money- 
payment  as  a  heriot  (as  at  Reading)  and  sometimes  of  rendering 
a  chattel  as  relief.  Heriot  was  never  used  with  the  villein  mean- 
ing of  *  best  chattel,'  nor  had  the  lord  any  voice  in  its  choice; 
it  was  a  definite  thing  —  a  sword,  or  lance,  or  bill  —  to  be  ren- 
dered at  a  burgess's  death.  At  times  money  might  take  its 
place,  and  it  looks  much  Uke  the  heriot  of  the  law  of  King  Canute. 

This  incident  is  never  found  in  any  but  some  small  purely 
agricultural  boroughs.  Its  existence  is  mentioned  only  to  be 
denied  at  Hereford  '  in  1281-82,  when  the  burgesses  were  gather- 
ing together  their  customs,  not  without  price,  for  the  men  of 
Haverfordwest,  who  needed  a  customal;  Newcastle;  ^  Kidder- 
minster ; '  Tewkesbury ;  *  and  a  few  other  boroughs  of  the  middle 
class.  In  a  still  less  important  class  of  boroughs  heriot  was 
very  present.  Among  them  are  Stockport,  Salford,^  and  Man- 
chester,® where  the  terms  burgess  and  heriot  seem  to  have  retained 
a  military  character  and  sound,  perhaps  from  the  days  of  the 
Danish  kings,  the  echo  of  which  is  not  wholly  silent  in  the  six- 
teenth century.^      At  Manchester  both  heriot  and  relief  were 

'  Johnson,  Customs  of  Hereford,  p.  26:  no  heriot  was  due  "  to  any  one  at  the 
death  of  a  citizen  dying  within  the  city  or  suburbs  for  any  of  his  tenements  situate 
therein." 

*  Brand,  Xewcaslle  upon  Tyne,  ii,  p.  130:  the  customal  embodies  the  usages 
temp.  Henry  I.     See  also  Stubbs,  Select  Charters,  p.  112. 

'  Burton,  Kidderminster,  p.  58. 

*  Bennett,  Tewkesbury,  p.  321:  some  of  these  customals  couple  heriot  and  relief 
while  denying  their  existence  within  the  borough  in  question. 

^  Tail,  Mediiindl  Manchester,  p.  70:  "  cum  burgensis  moriatur  heres  ejus  nullum 
aliud  relevium  dabit  mihi  nisi  hujusmodi  arma,  scilicet  gladium,  vel  arcum,  vel 
lanccam." 

*  Whitakcr,  Manchester,  ii,  p.  212:  the  Manchester  charter  says  "  alicujusmodi 
arma,"  which  according  to  the  extent  of  1322  meant  the  arms  usually  used  by  a 
burgess  (Tait,  Mediaeval  Manchester,  p.  70). 

^  Court  Lcet  Records  of  Manchester,  i,  p.  167,  a.  1574.  The  court  Icct  records 
abound  in  such  entries  as  "  ad  hance  curiam  venit  .  .  .  H.  P.  coram  .  .  .  sencs- 
callo  ibidt-m  .  .  .  ct  admissus  est  tcnens  et  dcdit  domino  pugioncm  secundum 
consuetuedinem,  (juc  pugio  appreciatus  fuit  ad  xii  d." 


THE  INCIDENTS  OF  BURGAGE  TENURE  23 

owed,  sometimes  by  the  same  tenant,^  and  the  two  incidents  were 
frequently  confused.'^  It  is  noteworthy  that  both  relief  and 
heriot  at  the  three  above-mentioned  boroughs  went  to  the  lord 
of  the  borough,  elsewhere  they  were  apparently  the  chief  lord's 
due,  and  this  condition  probably  held  good  at  Birmingham,' 
At  Lichfield  heriot  was  an  obHgation  resting  on  every  burgage 
and  seems  always  to  have  been  a  payment  of  money.*  At  Oswes- 
try heriot  seems  to  have  been  paid  to  the  chief  lord  from  the 
effects  of  one  who  died  tenant  of  a  burgage.^  If  this  heriot  were 
a  rendering  of  arms  a  better  example  of  survival  could  hardly 
be  provided,  for  the  original  heriot  was  a  military  payment  in 
kind  from  the  dead  man's  goods,  whether  these  goods  had  been 
given  him  by  his  lord  or  not,  while  rehef  came  from  the  heir. 
The  ideas  are  different  though  the  result  is  the  same.  Heriot 
at  Oswestry  was  the  same  as  the  heriot  of  Canute's  law;  at  Tut- 
bury  and  Uttoxeter  also  it  retained  its  ancient  meaning,^  though 
the  word  itself  is  denied,  no  doubt  for  the  reason  that  the  heriot 
of  the  country  at  the  time  of  the  record  "^  was  universally  a  best 
chattel  or  best  beast. 

It  seems  that  burgesses  before  the  Conquest  were  fairly  well 
accustomed  to  rendering  heriot,  though  the  incident  was  by  no 

1  Court  Records  of  Manchester,  i,  p.  204:  a  tenant  who  paid  about  a  year's  rent  as 
relief  rendered  also  a  dagger  which  was  once  his  father's.  Heriots  often  appear  as  6d.; 
on  one  occasion  this  amount  was  paid  for  a  heriot  and  a  relief  as  well  {ihid.,  i,  p.  42). 

2  Heginbotham,  Stockport,  i,  p.  162.  At  the  great  leet  of  1569  a  burgess's  son, 
at  admission  as  a  tenant,  "  soluit  Relium  viz.  Abyll  "  (a  bill).  The  Norman  super- 
structure and  the  Saxon  substructure  are  commingled  here. 

2  Mrs.  J.  R.  Green,  Town  Life  in  the  Fifteenth  Century  (1894),  i,  p.  201 :  the  heriot 
seems  to  have  been  a  bill  or  pole-ax,  or  4od.  in  commutation. 

^  Harwood,  Lichfield,  p.  381.  Though  paid  in  money  it  seems  rather  a  com- 
mutation for  the  heriot.  According  to  the  corporation  records  a  survey  (extent) 
in  26  Ed.  (  ?  IV)  showed  that  there  were  then  286J  burgages,  each  of  which  '  payeth 
for  heriot.' 

^  Cathrall,  Oswestry,  p.  47:  "whoever  hved  in  the  house  of  a  burgess,  and 
happened  to  die  there,  the  burgess  was  to  have  a  heriot  after  his  decease."  The 
customal  does  not  state  whether  the  heriot  was  a  chattel  or  a  commutation  therefor. 

^  Mosley,  Tuthury,  pp.  367-368:  "  the  burgesses  of  Tutbury  .  .  .  [and]  Uttoxe- 
ter ..  .  shall  pay  noe  herryotts  nor  frythsilver,  nor  rent  hens  nor  other  duty, 
but  after  the  deathe  of  theire  ancestors,  the  king  shall  have  theire  "  {i.  e.,  the  ances- 
tors') "  chiefe  weapon  in  lieu  of  a  herryott."  The  rendering  is  to  the  lord  of  the 
borough:  cf.  Manchester  and  Stockport. 

^  2  Henry  V. 


24  BURGAGE  TENURE  IN  ENGLAND 

means  universal.'  Perhaps  this  may  help  to  explain  its  infre- 
quency  in  the  later  period,  for  where  retained,  its  military  char- 
acter raised  it  above  the  villein  heriot  to  the  feudal  relief,  while 
this  very  military  nature  made  it  inapplicable  to  the  larger  com- 
mercial boroughs.^ 

Escheat 

This  incident  will  be  dealt  with  here  in  its  accurate  meaning  — 
the  lapse  or  reversion  of  an  estate  to  the  next  lord  on  the  failure 
of  heirs,  the  term  heir  being  used  in  the  strict  feudal  sense.' 
Borough  charters  and  customals  rarely  mention  the  matter,  but 
the  Calendars  of  Inquisitions  post  mortem,  the  Hundred  Rolls, 
records  of  transfer  and  descent  of  tenements,  and  sources  of  like 
nature  contain  abundant  evidence  to  show  that  escheat  was  the 
lord's  due;  that  a  tenement  which  lacked  an  heir  did  not  fall  to 
the  community,  as  was  the  custom  in  many  German  cities;  and 
that  his  right  to  escheat  was  seldom  disputed  openly.  They 
also  show  that  the  lord,  if  he  were  not  a  burgess,  had  to  be  watch- 
ful that  he  got  his  due.  In  dealing  with  the  subject  we  shall 
treat  in  order:  recognition  of  the  lord's  right;  his  claims  where  he 
fears  that  he  is  losing  escheats;  his  actual  loss;  and  his  giving 
the  right  to  take  escheats  to  a  person  or  to  a  community. 

At  Ipswich  the  customal  recognized  the  chief  lord's  right  to 
escheat  "  when  it  is  due  by  law,"  *  and  at  Berwick,  after  its  recon- 
quest  by  Edward  III,  many  tenements  escheated  to  the  king, 
not  it  would  seem  on  account  of  the  townsmen's  resistance, 
which  could  be  called  treason,  but  because  death  or  expulsion 
of  the  holders  had  left  their  messuages  tenantless.*     Burgages 

'  Ballard,  Domesday  Boroughs,  p.  49. 

*  At  Launceston  there  is  casual  reference  to  heriot.  In  the  i6th  century  there 
are  two  tenements  which  owe  "  heriotes  whan  itt  fallith  "  but  they  seem  to  be 
outside  the  borough;  the  heriot  is  part  of  the  rent.  See  Peter,  Launceston,  pp.  174, 
180. 

'  In  the  sources  escheat  is  often  used  in  the  sense  of  forfeiture.  For  the  latter 
incident  see  p.  ^^. 

*  Domesday  de  Gipprwyz,  p.  141;  Bacon,  Annalls  of  Ipsuiche,  p.  34.  In  1376 
there  is  a  record  of  a  messuage  "  holden  of  the  king  "  which  escheated  because  the 
holder  "  was  a  bastard  and  died  without  heire  "  and  therefore  was  kinless  {ibid., 
p.  78;    see  also  p.  79  for  an  escheat  by  death). 

'  Scott,  Berwick,  pp.  249-250:   they  fell  to  the  king  not  as  lord  of  the  borough 


THE  INCIDENTS  OF  BURGAGE  TENURE  25 

escheated  '  for  lack  of  heirs  '  in  Liverpool/  Liskeard,  where  the 
burgesses  were  seemingly  responsible  for  the  rent,^  and  Hull,^ 
where  however  the  conscience  of  the  community  had  been  awak- 
ened by  an  inquisition  ad  quod  damnum. 

In  Rospont  (Ross),  and  in  Old  Ross  before  it  had  quite  lost 
its  burghal  character,  tenements  fell  into  the  hand  of  the  king's 
representative  or  justiciar,  at  that  time  R.  Bigod,  and  thence 
apparently  into  the  king's  hand,  though  the  earl  for  a  time 
retained  them/  At  Cambridge  ^  and  Leicester  ^  the  king  was 
careful  to  retain  his  right  to  escheats  while  parting  with  other 
privileges;  at  Richmond  his  example  was  followed  by  its  earlJ 
Norwich  illustrates  the  common  usage  in  respect  to  escheat  with 
so  clear,  concise,  and  yet  comprehensive  a  record  that  the  report 
of  the  inquest-jury  concerning  an  escheated  tenement  in  that 
city  merits  quotation:  "  Reginald  de  Cressy,  parson  of  churches, 
had  a  bastard  daughtsr,  Isabel,  whom  he  enfeoffed  of  the  said 
messuage.      Robert  le  Blund  took  her  to  wife  and  they  had  a 

(see  London  and  Oxford  custom,  p.  27  below)  but  because  he  was  the  only  lord 
remaining.  Burgages  in  the  connected  barony  of  Lindsay  escheated  at  the  same 
time  {Berwick,  p.  251). 

^  Picton,  Liverpool  Records,  i,  p.  12:  the  bailiffs  account  for  the  rent  of  "  three 
parts  of  one  burgage  and  of  five  sellions  of  land  which  fell  into  the  hands  of  the 
Lord  by  the  death  of  John  Botiller  a  bastard,"  a.  1346. 

2  Allen,  Liskeard,  p.  21:  the  burgesses  in  1301  "  render  for  a  certain  burgage 
thereof  escheat  2s.  6d."  in  addition  to  their  usual  ^rwa  btirgi. 

^  Frost,  Hidl,  p.  25:  the  writ  concerned  a  messuage  which  I.  "  quondam  bur- 
gensis  dicte  ville  "  held  of  the  king  and  which,  through  I.'s  death,  had  come  into 
the  king's  hand. 

*  Hore,  Wexford,  i,  p.  143.  In  1280-81,  the  praepositus  of  Ross  returns,  among 
his  other  accounts,  the  rents  of  certain  stalls  "  which  are  taken  into  the  hand  of  the 
Earl  by  escheat."  In  Old  Ross,  probably  still  a  borough,  among  the  accounts 
is  one  concerning  a  tenement  escheated  through  the  death  of  the  previous  holder 
(Hore,  Wexford,  i,  p.  153).  In  1304-05  the  king's  escheator  for  Ireland  stated  that 
R.  Bigod  "  was  in  seisin  of  a  certain  tenement  in  the  town  of  Ross  as  of  escheat  by 
the  death  of  R.  M."  (ibid.,  i,  p.  166). 

*  Cooper,  Cambridge,  i,  p.  92.  In  1340  the  king  granted  the  new-made  Earl 
of  Cambridge  the  castle  and  other  royal  property  in  Cambridge  "  saving  to  the 
king  .  .  .  escheats  pertaining  to  the  Castle  and  town." 

'  Bateson,  Records  of  Leicester,  ii,  p.  220.  The  lease  of  the  farm  of  the  borough 
from  Henry  IV  in  1404  saves  to  the  king  his  escheats. 

^  C.  P.  R.,  a.  1436-41,  p.  509:  John,  Earl  of  Richmond,  granted  the  borough 
with  pasture  to  the  burgesses  for  £40  in  1268,  escheats  to  remain  with  him. 


26  BURGAGE  TENURE  IN  ENGLAND 

son,  Reginald,  who  eight  years  ago  withdrew  from  England,  and 
because  the  jury  know  not  whether  he  is  alive  or  dead  and  there 
is  no  other  heir,  the  messuage  has  been  taken  into  the  king's 
hands,  and  delivered  to  the  bailiffs  of  Norwich  until  the  king  shall 
direct  what  he  wills."  * 

Messuages  are  spoken  of  as  being  or  having  been  escheats 
to  the  king  in  Windsor  ^  and  Northampton ;  ^  at  Southampton 
escheats  were  due  the  lord  of  the  borough,  in  this  case  the  king.* 
Because  these  instances  show  that  the  borough  lord  was  entitled 
to  escheats  it  does  not  follow  that  they  went  to  him  over  mesne 
lord's  heads;  such  is  not  the  rule. 

In  the  case  of  the  luckless  Jews,  however,  no  rule  except  the 
king's  caprice  seems  to  have  held.  "  What  belonged  to  the  Jews 
belonged  to  the  king,"  and  many  a  messuage  passed  into  his 
hands,  though  commonly  under  semi-legal  forms,  the  heir's  rights 
being  apparently  completely  ignored,  only  because  the  holder  was 
a  Jew.  This  is  robbery  rather  than  escheat ;  it  is  an  inheritance 
tax  on  realty  of  one  hundred  per  cent,  much  like  ancient  theoret- 
ical rehef  and  not  very  different  from  actual  relief  in  the  days 
of  William  the  Red.  Probably  the  reason  why  it  was  regarded 
as  escheat  was  because  the  king  was  in  a  sense  a  Jew's  only  lord.* 

'  C.  I.  M.,  i,  p.  i66  (47  Henry  III):  the  escheator  is  not  known  for  the  writ 
(original)  is  lost.  Eight  years  are  not  necessarily  the  limit  of  time  beyond  which 
an  heir  loses  his  rights. 

*  C.  C.  R.,  i,  p.  444:  the  date  is  1255  and  it  is  doubtful  whether  Windsor  was  a 
borough  at  that  time. 

*  C.  C.  R.,  i,  p.  452,  a.  1256:  the  king  granted  a  house  which  had  come  to  him 
by  the  death  of  the  holder  (Leo,  a  Jew)  "  without  an  heir  and  intestate,  so  that  the 
king  may  give  it  to  whom  he  will."  In  the  same  year  the  king  recovered  a  tene- 
ment in  Northampton  against  .\dam  the  Fleming  as  his  escheat. 

*  Calendariiim  Inquisitionum  ad  quod  damnum,  p.  348,  a.  1402:  "  W.  B.  W. 
defunctus  tenuit  de  nobis  in  burgagio  die  quo  obiit  .  .  .  tenementa  .  .  .  que 
ad  nos  tanquam  escaeta  nostra  pcrtinere  debent." 

'  R.  II.,  i,  p.  119.  At  York  ihc  juratores  "  dicunt  quod  domus  que  fuit  Isaac 
Judei  debet  esse  escaeta  domini  Regis  eo  quod  quidam  murus  dicte  domus 
oppressit  eum  unde  obiit."  This  is  called  an  escheat;  it  is  as  much  a  deodand. 
The  house  falls  on  it.s  owner  and  thereby  into  the  king's  hand.  Also  {ibid.,  p.  119) 
at  York  a  burgess  "  amisit  in  Judaismo  "  a  mill,  etc.;  the  Jew  died;  "  unde  deberent 
esse  escaeta  domini  regis."  There  is  no  word  of  heirs  and  the  latter  case  shows  how 
the  king  robbed  his  Christian  subjects  by  robbing  the  Jews,  for  if  the  mill  had  been 
mortgaged  to  the  Jew  the  mortgagor  had  no  redress,  there  was  no  equity  of  redemp- 


THE  INCIDENTS  OF  BURGAGE  TENURE  27 

It  is  probable  that  if  a  Jew's  tenement  had  any  other  lord  than 
the  king  such  a  lord  lost  his  rights.  An  escheat  might  come  to 
the  lord  through  the  late  holder's  neglect  to  make  a  will  ^  and  a 
religiosus  who  kept  his  vows  sometimes  thereby  enriched  his 
chief  lord.2  These  are  instances  of  escheat  to  a  chief  lord  of  the 
fee  without  the  borough,  but  there  were  the  chief  lords  within; 
almost  any  burgess  might  stand  in  that  position  for  almost  any 
tenement.  So  might  the  commonalty,  which  could  and  did  hold 
real  estate,  at  an  early  period  in  some  boroughs,  and  in  such  cases 
took  escheats.^  In  London,^  Canterbury,^  and  probably  Bristol 
and  Oxford,^  all  escheats  went  to  the  lord  of  the  borough,  in  these 
cases  the  king;  chief  and  other  mesne  lords  lost  their  rights. 

When  escheats  were  due  to  the  lord  of  the  borough  they  seem  to 
have  had  a  constant  tendency  to  slip  away  from  him.  This  feature 
is  present  in  many  records  of  which  real  property  is  the  subject, 
sometimes  only  as  an  impression  gathered  from  the  spirit  of  the 
record,  but  often  specifically  expressed  in  efforts  toward  preven- 
tion, as  in  the  general  directions  in  the  Hundred  Rolls:  "  touching 
the  king's  farmers  who  hold  cities,  boroughs,  or  other  manors 
of  the  king  at  fee-farm  and  who  by  reason  of  the  farm  take  the 
escheats  and  ahenate  or  retain  them."  '     In  the  case  of  a  borough 

tion  then.  All  is  done  through  a  jury,  however,  and  nothing  before  the  mortgagee's 
death.     Therefore  caveat  mortgagor. 

^  C.  I.  M.,  i,  p.  228:  in  London  in  53  Henry  III  certain  houses  "  late  of  the  said 
W.  .  .  .  are  the  king's  escheat  because  the  said  W.  died  without  heir,  and  made  no 
mention  of  them  in  his  will." 

^  C.  I.  M.,  i,  p.  242,  54  Henry  IH.  A  tenement  at  Cumbe,  held  of  the  king  in 
chief,  escheats  to  him  for  lack  of  heirs.  The  holder  was  a  cappelanus,  evidently 
not  of  the  style  of  Reginald  of  Norwich. 

^  Gilbert,  Records  of  Dublin,  i,  p.  106.  After  the  great  fire  of  1285  the  DubHn 
authorities  let  a  piece  of  ground  which  had  "  escheated  to  the  citizens."  A  '  noti- 
fication '  by  the  mayor  and  commonalty  of  that  city  (ibid.,  p.  88)  states  that  "  when 
any  person  holding  a  tenement  in  fee  from  a  citizen  dies  without  direct  heirs,  the 
tenement  reverts  as  his  escheat  to  the  citizen  from  whom  he  held  it,"  which  is 
what  one  whould  expect,  "  but  if  there  be  a  collateral  heir  he  is  to  have  seisin  of 
the  tenement."  Such  a  notification  seems  needless.  Possibly  the  burgesses  feared 
the  king's,  or  his  officials'  intervention. 

*  C.C.  i?.,i,p.  51;  P.  R.  O.,  coramrege,  199,  m.  80;  Plac.  Westmon.  Abbr.,  p.  310. 

^  P.  R.  O.,  coram  rege,  256,  m.  141. 

^  For  authority  and  discussion  of  reasons  see  Forfeiture. 

^  R.  H.,  ii,  p.  392;  Maitland,  Township  and  Borough,  app.,  par.  116. 


28  BURGAGE  TENURE  IN  ENGLAND 

at  fee-farm,  as  almost  all  the  larger  boroughs  were  at  this  period, 
those  against  whom  the  inquiry  was  directed  would  be  the  bur- 
gesses as  a  community,  for  the  fact  of  corporateness  is  there 
whether  the  theory  is  or  is  not.^  Nor  was  the  king  the  only  lord 
of  a  borough  who  saw  his  escheats  threatened;  at  Leicester  the 
lord  had  difficulty  in  keeping  his  escheated  tenements  out  of 
the  hands  of  the  burgesses,  who  had  adopted  the  simple  and 
well-intentioned  though  ultimately  futile  expedient  of  refusing 
to  pay  the  rents  thereof.'^ 

In  addition  to  these  general  cases  there  are  many  instances 
of  attempts  to  get  isolated  escheats,  or  at  least  to  make  sure 
that  such  should  not  escape  when  they  became  escheats.  It 
was  even  possible  for  the  king  as  lord  to  give  or  sell  a  tenement 
never  lawfully  his  on  the  pretence  that  it  was  an  escheat,  his 
efforts  however  meeting  with  no  more  success  than  those  of  the 
Leicester  burgesses.^  The  royal  government  seems  to  have 
maintained  a  system  of  espionage  over  escheats  in  the  boroughs, 
for  it  nearly  always  knew  more  about  them  than  did  the  borough 
magistrates,  notwithstanding  the  fact  that  the  mayor,  where 

'  To  the  sheriff  of  Bristol  in  1384  came  a  writ  of  praecipe  to  see  to  it  that  Anne 
(of  Bohemia),  Richard's  first  consort,  to  whom  he  had  given  his  privileges  and  prof- 
its in  Bristol,  should  not  lose  her  rights.  "  Cum  per  .  .  .  litteras  nostras  patentes 
dederimus  .  .  .  consorti  Anne  .  .  .  diversa  tenementa  cum  escaetis  omnibus 
tenementis  .  .  ."  {liicklcy,  Little  Red  Book  of  Bristol,  i,  p.  126).  It  would  appear 
that  the  Bristol  community  or  corporation,  for  the  city  was  a  county  borough  in 
1384.  were  trying  to  keep  the  king's  escheats,  as  the  city  of  Cambridge  may  have 
tried  in  1279. 

'  Bateson,  Records  of  Leicester,  ii,  pp.  150,  159.  In  1377-78  the  mayor  and  bur- 
gesses were  charged  with  three  years'  arrears  of  rent  of  tenements  "  being  in  the 
hand  of  the  lord  by  escheat."  It  seems  that  the  defendants  had  been  applying 
the  rents  of  the  tenements  in  question  to  their  own  use  "  contrary  to  the  form  of  the 
same  indenture  thus  agreed  upon  with  the  council  of  the  lord  "  by  which  indenture 
"  the  escheats  of  free  tenements  "  are  saved  to  the  lord.  The  burgesses  lost  their 
case  and  had  to  pay  £10  and  more  of  arrears  to  the  lord,  John  of  Gaunt. 

^  C.  I .  M .,  i,  p.  227.  At  Cambridge  in  53  Henry  III  the  inquest-jury  found  that 
"  the  houses  late  of  the  said  T.  are  not  the  king's  escheat  through  his  "  (i.  e.,  T.'s) 
"  death,  and  the  king  can  not  give  them  away  without  injury  to  Luke  "  because 
the  hou.ses  in  question  had  been  given  "  to  the  said  T.  and  the  heirs  of  his  body, 
with  remainder  to  the  said  Luke,"  strengthened  by  a  final  concord  of  the  whole 
tran.saclion  made  at  Westminster  in  41  Henry  HI.  Of  course  the  king  lost  the 
messuage,  but  so  sure  was  he  of  it  that  he  had  given  his  supposititious  and  premature 
escheat  to  Sir  Ralph  Pirot,  "  who  had  ejected  the  said  Luke  by  force." 


THE  INCIDENTS  OF  BURGAGE  TENURE  29 

there  was  one,  was  commonly  the  king's  escheator.  Even  the 
humblest  tenement  was  watched.  At  Suwerk  (Southwark) 
it  required  the  efforts  of  an  inquest-jury  to  keep  a  stone-cutter's 
house  from  seizure.^ 

The  king  was  not  the  only  lord  who  thought  it  better  to  have 
claimed  and  lost  than  never  to  have  claimed  at  all.  It  seems 
that  on  a  few  occasions  certain  bishops  were  either  led  astray 
by  his  example,  or  were  forced  into  illegal  action,  or  else  that  the 
king  impelled  the  keepers  of  the  bishoprics  during  vacancy  into 
like  indefensible  proceedings.^  The  last  is  certainly  the  correct 
interpretation  of  the  king's  attempts  to  acquire  burgages  at 
Winchester  and  Canterbury,  and  the  inwardness  of  the  proceed- 
ing seems  to  be  that  the  king  was  desirous  of  getting  what  he 
could  out  of  the  bishoprics  during  vacancy,  escheats  included. 
Such  falUng  to  him,  he  would  have  the  right  to  give  them  or  to 
sell  them,  though  their  rents  would  still  be  payable  to  the  bishop 

^  In  50  Henry  III  an  inquisition  post  mortem  was  held  in  respect  to  a  mar- 
beler's  tenements,  even  though  he  had  a  daughter,  who  was  also  heir  to  his  deceased 
brother's  tenement.  In  31  Henry  III  at  Hereford  (C.  /.  M.,  i,  p.  25)  the  finding 
in  respect  to  a  messuage  balked  the  king's  attempt.  In  41  Henry  III  (C.  /.  M., 
i,  pp.  113-114)  the  heirs  of  Patrick  de  Chaors  (Cahors)  retained  their  tenements 
against  the  king's  attempt  at  seizure. 

^  C.  I.  M.,  i,  p.  135  (45  Henry  III).  A  writ  addressed  to  the  keeper  of  the 
bishopric  of  Winchester  ordered  an  inquisition  concerning  "  divers  tenements 
(in  Winchester)  held  of  divers  lords  by  divers  rents,"  most  of  the  tenements  having 
been  in  the  hands  of  one  man  whose  death  was  the  cause  of  the  inquisition.  He 
had  heirs  however  so  the  tenements  could  "  in  no  wise  ...  be  the  escheat  of  the 
said  bishopric." 

At  Thame  there  are  similar  instances  of  endeavors  to  acquire  lands  held  '  in 
burgagio,'  notwithstanding  the  fact  that  the  deceased  tenant  had  "  plures  con- 
sanguineos  de  terris  et  tenementis  praedictis  haereditabiles,"  49  Ed.  III.  One 
J.  died  seized  in  fee  "  de  uno  burgagio  ...  in  villa  praedicta  "  (Thame)  in 
47  Ed.  III.  The  bishop  of  Lincoln,  who  was  the  offender  in  each  case,  "  intravit 
et  ita  tenet  ut  escaetam  .  .  .  pro  defecta  heredum,  ubi  plures  sunt  de  sanguine 
praedicti  J."  The  messuages  were  the  object  of  another  unsuccessful  attempt  in 
17  Rich.  II  (Madox,  Firma  Biirgi,  p.  41).  Thame  may  have  been  a  borough,  but 
it  is  doubtful,  though  the  messuages  are  repeatedly  said  to  be  held  '  in  burgagio.' 
If  it  was  not  a  borough  the  law  would  consider  the  tenements  held  in  socage. 

At  Canterbury  in  55  Henry  III  (C.  /.  M.,  i,  p.  258)  was  another  attempt  to 
acquire  tenements  while  the  archbishopric  was  in  the  hands  of  a  keeper.  The 
burgess,  however,  "  held  nothing  of  the  archbishopric  in  chief  "  (that  is,  the  arch- 
bishop was  not  his  chief  lord)  and  "  it  cannot  be  the  king's  escheat,  for  he  left  an 
heir." 


30  BURGAGE  TENURE  IN  ENGLAND 

if  he  were  chief  lord.  Perhaps  the  king's  seeming  avidity  is  due 
to  the  thoroughness  of  the  royal  oflSdals  and  the  accuracy  of 
their  accounts  as  much  as  to  royal  greed.  The  king's  own  prop- 
erty in  Winchester  was  watched  over  quite  as  sharply,^  and  to 
judge  from  the  care  with  which  the  king,  or  rather  his  ministers 
for  him,  looked  after  his  chances  to  get  escheats,  in  which  laudable 
and  strenuous  efforts  no  reign  shows  so  much  misdirected  energy 
as  Henry  Ill's,  it  seems  almost  impossible  that  any  tenement 
could  escape  which  should  come  to  him  by  law ;  and  what  is  true 
of  the  royal  boroughs  is  probably  not  untrue  of  those  held  by 
barons  and  bishops. 

Yet  there  is  evidence  that  escheats  sometimes  did  escape  the 
lord  for  a  time  at  least,  and  that  occasionally  an  isolated  tene- 
ment got  out  of  his  hand,  as  a  case  in  London  during  the  progress 
of  the  'Great  Inquiry'  of  1279  illustrates;  what  makes  the  instance 
odder  is  that  the  tenement  in  question  of  which  the  king  could 
not  keep  track  seems  to  have  been  a  royal  wine-cellar.^  That 
the  London  jurors  should  be  *  wholly  ignorant '  is  not  so  odd ; 
ignorance  in  such  matters  was  wide-spread  throughout  the 
boroughs.  Compared  with  the  extent  of  their  knowledge  of 
other  subjects  it  seems  especially  dense  among  the  Cambridge 
jurors.^  Another  possible  way  for  the  king  to  lose  his  escheats 
lay  in  their  detention  by  one  to  whom  he  had  granted  a  borough.* 

'  C.  I.  M.,  i,  p.  283.  The  finding  of  the  inquest-jury  was  that  a  certain  messuage 
was  not  the  king's  escheat  for  he  had  given  "  it  to  the  said  G.  and  his  heirs,  and  he 
had  a  son."  Again  in  another  inquisition-finding  certain  houses  "  arc  not  the 
king's  escheat  through  "  R.'s  death  on  account  of  the  manner  of  their  acquisition. 
The  writ  is  to  the  mayor  and  bailiffs.     Both  inquests  were  in  56  Henry  III. 

*  R.  H .,  i,  p.  422.  Concerning  this  tenement  the  juratores  "  dicunt  quod  quedam 
domus  quam  W.  H.  tenet  in  civitate  Londonia  fuit  aliquando  in  dominico  corona 
domini  regis  et  celarium  ad  vina  domini  regis  hospitanda,  qualiter  et  quomodo 
a  manibus  domini  regis  fuerit  alicnata,  penitus  ignorant."  The  tenement  is  inquired 
about  and  reported  again;  the  jurors  are  still  ignorant  {ibid.,  pp.  429-430).  The 
messuage  may  be  a  lawful  escheat  or  it  may  have  previously  escheated  and  escaped 
the  king,  probal)ly  the  former. 

'  See  R.  II.,  ii,  pp.  356  et  seq.,  the  Cambridgeshire  inquest-finding. 

*  This  grant  of  a  borough  was  usually  a  grant  by  the  king  of  whatever  profits  he 
got  from  the  town;  that  is,  it  meant  a  grant  of  the  farm  of  the  borough  or  of  the 
fee-farm  rent  {Firma  Burgi)  if  the  borough  was  so  held.  Only  the  smallest  royal 
boroughs  were  commonly  so  granted,  usually  for  life  or  a  term  of  years.  The 
grantee,  who  was  as  a  rule  a  noble,  or  a  bishop,  or  sometimes  the  '  king's  consort,' 


THE  INCIDENTS  OF  BURGAGE  TENURE  3 1 

There  w£is  also  much  indirect  loss  of  escheat  to  both  chief  lords 
and  the  lord  of  the  borough  through  alienation  either  to  the 
community  within  which  the  tenement  lay,  or  to  a  community 
of  the  religious.  In  addition  it  was  possible  for  those  whose  duty 
it  was  to  see  that  the  king  did  not  lose  his  lawful  escheat  to  be 
instrumental  in  doing  the  very  thing  which  they  were  supposed 
to  prevent.^     In  the  baronial  boroughs  escheats  may  have  escaped 

commonly  had  the  right  to  take  escheats  during  the  period  of  the  grant  (Bickley, 
Little  Red  Book  of  Bristol,  \,  p.  126).  This  was  not  a  permanent  loss  of  escheats 
to  the  king  as  lord  of  the  borough,  but  only  of  those  which  happened  to  fall  in  dur- 
ing the  interval  of  the  grant.  The  grantee  however  frequently  did  what  he  could 
to  make  the  loss  permanent  even  though  he  had  never  had  any  right  whatever 
to  take  escheats.  In  1223  the  king  complained  to  the  archbishop  of  Dublin, 
justiciary  of  Ireland,  that  Thomas  Fitz  Anthony,  who  had  been  given  the  grant  of 
the  city  of  Cork,  "  as  far  as  belongs  to  the  king,"  in  1215  and  who  had  had  the 
Firma  Burgi  for  three  years  to  build  the  city  wall,  had  detained  some  of  the  king's 
escheats  (Caulfield,  Council  Book  of  Cork,  pp.  xii.xiii).  The  Firma  Burgi  never 
contained  the  rents  (not  original)  or  prices  of  escheated  tenements,  unless  such  were 
specifically  indicated  as  being  contained  therein.  The  fact  that  Thomas  Fitz 
Anthony,  or  any  one  else,  had  a  grant  of  the  Firma  Burgi  did  not  give  him  the 
slightest  right  to  retain  them.  The  chances  for  usurpation  in  Ireland  were  excellent 
about  this  time,  and  Thomas  Fitz  Anthony  did  not  fail  to  improve  them  ; 
in  1226  the  prior  of  Cork  complained  that  Thomas  had  disseized  him  of  two  bur- 
gages; the  wave  of  objection  went  from  prior  to  justiciary  and  justiciary  to  king, 
from  whom  came  nothing  but  the  advice  that  the  prior  might  have  an  assize  of 
novel  disseisin,  which  he  could  have  had  in  the  first  place  for  the  asking  under  the 
biu-ghal  name  of  the  assize  of  fresh  force. 

^  See  Hore,  Wexford,  i,  p.  166.  The  escheator  said  that  while  R.  Bigod  was 
holding  lands  in  Ireland,  and  before  he  held  them  "  to  himself,"  he  had  alienated 
two  tenements,  which  had  escheated,  "  to  the  .  .  .  disherison  of  our  lord  the 
King."  In  like  manner  the  king's  escheators  may  have  retained  at  least  a  part 
of  the  escheats,  sometimes  legally  as  the  result  of  an  agreement  with  the  central 
government.  Such  an  arrangement  however  was  not  likely  to  affect  the  boroughs 
to  any  extent,  especially  after  the  custom  became  general  of  making  the  mayor  the 
escheator  (see  Mrs.  J.  R.  Green,  Tovm  Life  in  the  Fifteenth  Century,  \,  p.  208,  note  i). 
According  to  Langland  the  lawyers  too  seem  to  have  had  their  share  in  keeping 
his  escheats  from  the  king  {ibid.,  p.  230,  note  3)  but  the  reference  is  probably  to  for- 
feiture. In  Dublin  in  1327  arose  a  case  which  looks  as  if  the  escheator  had  legally 
retained  escheats:  Fromund,  son  of  Sir  Nigel  le  Brun,  had  a  dispute  with  the 
commonalty  over  property  which  both  he  and  the  commonalty  had  granted  to  a 
burgess.  That  he,  and  not  the  commonalty,  had  the  right  to  give  the  tenements, 
which  had  come  to  him  from  his  father  who  was  escheator  for  Ireland,  was  decided 
by  the  court  (Gilbert,  Records  of  Dublin,  i,  pp.  11 5-1 16).  What  gives  the  case  the 
appearance  of  a  retained  escheat  is  the  action  of  the  commonalty,  which  had  the 
disposal  of  property  of  its  own  which  might  escheat  to  it. 


32  BURGAGE  TENURE  IN  ENGLAND 

the  lord  oftener  than  they  did  in  the  royal  boroughs,  for  the 
barons'  machinery  of  supervision  was  not  so  effective  as  the 
king's.  Even  beyond  our  period  the  burgesses  of  Hedon  stood, 
and  lost,  a  suit  at  law  before  they  gave  up  illegally  retained 
escheats.^  Though  what  happened  at  Hedon  may  have  happened 
at  many  an  obscure  borough  whose  records  still  he  buried,  such  loss 
could  not  have  been  large  compared  with  that  due  to  corporate 
ownership.  When  a  tenement  passed  to  the  commonalty  or 
to  the  church  that  ended  the  lord's  rights  thereto;  a  universilas 
was  the  lord  now,  and  as  such  took  its  escheat.^ 

*  Boyle,  Hedon,  pp.  219,  225-227.  In  1630  Lord  Dunbar,  who  held  the  seigniory 
of  Holderness,  brought  suit  against  the  mayor,  bailiffs,  and  burgesses  of  Hedon  to 
recover  his  escheats.  The  defendants  admitted  that  they  had  retained  escheats 
and  afl&rmed  that  they  had  a  right  to  do  so  through  immemorial  custom,  and  also 
by  virtue  of  charters  and  grants.  Of  these  last  however  they  had  none  to  show, 
while  their  custom  was  by  no  means  immemorial.  They  lost  their  case,  although 
it  was  proved  that  for  some  years  the  community  had  kept  escheats  for  lack  of 
heirs. 

*  At  Bridport,  probably  temp.  Ed.  II,  the  bailiffs  of  Bridport  along  with  their 
fellow-burgesses  granted  a  tenement  for  a  price  paid  down  and  a  yearly  rent,  but 
the  grant  provided  that  in  case  the  last  holder  came  home  "  that  the  five  marks  so 
paid  to  the  burgesses  are  to  be  returned."  The  community  (lord)  had  taken  its 
escheat  but  gave  the  former  holder  a  chance  to  regain  it  (H.  M.  C,  Rep.,  6.  p.  485). 

At  Dublin  in  13 18  the  town  magistrates  '  set '  a  plot  of  ground  to  a  burgess 
who  is  to  hold  it  "  until  claimed  by  the  lawful  heir."  If  he  should  come  the  tenant 
may  retain  the  land  till  paid  for  any  buildings  which  he  has  erected.  Again  the 
community  gives  every  chance  to  a  possible  holder  (Gilbert,  Records  of  Dublin,  i, 
p.  117).  Sometimes  the  borough  and  the  church  worked  together  (a  rare  case  of 
agreement)  as  at  Plymouth  where  the  Old  Black  Book  contains  such  items  as: 
"  that  in  case  D.  .  .  .  die  without  heir  the  capital  messuage  of  the  late  N.  .  .  . 
[probably  D.'s  father]  will  remain  to  the  mayor  and  commonalty  ...  for  the  use  of 
St.  A.'s  church,"  an  instance  of  the  doctrine  of  uses  to  evade  the  act  De  Viris 
Religiosis.  Both  feoffor  and  feofee  are  virtually  immortal  (H.  M.  C,  Rep.,  9,  pt.  i, 
p.  272). 

At  Bath  early  in  Edward  I's  reign  the  jurors  said  "  that  the  prior  had  acquired 
by  gift  or  purchase,  after  he  had  taken  the  city  to  farm,  27  tenements  in  '  perpetual 
alms,'  out  of  which  the  king  had  lost  escheats  and  other  emoluments  "  (King  and 
Watts,  Municipal  Records  of  Bath,  p.  15).  The  loss  of  an  escheat  might  sometimes 
be  considerable.  In  1294  an  inquisition  ad  quod  damnum  in  Cambridge  showed 
that  if  certain  messuages  and  land  were  given  to  the  University  of  Cambridge, 
the  king  would  be  damaged  by  the  loss  of  the  escheat  to  tiie  extent  of  £40  (Maitland, 
Tounship  and  Borough,  p.  186).  Even  as  late  as  the  i6th  century  possible  loss 
of  escheat  seems  to  haunt  the  royal  exchequer.  Cir.  1565  a  commission  reported 
that  the  sovereign  would  lose  all  escheats  in  Cardiff  if  certain  privileges  were  granted 


THE  INCIDENTS  OF  BURGAGE  TENURE  33 

Release  in  perpetuity  of  the  right  to  take  escheat  was  rare. 
The  bishop  of  London  seems  to  be  the  only  one  to  do  so  when, 
among  other  privileges,  he  sold  his  right  to  take  escheats  to  the 
men  of  Maldon.^  From  the  preceding  instances  it  is  clear  that 
escheat  in  the  boroughs  was  the  chief  lord's  undoubted  right,  that 
the  burgesses  recognized  this  though  they  seldom  exerted  them- 
selves to  aid  the  borough-lord,  that  where  it  could  be  of  no 
disadvantage  to  themselves  they  seemed  quite  wilUng  to  tell  the 
truth  when  an  inquisition  was  held,  that  the  lord's  claims  (the 
lord  king's  at  least)  were  frequent  and  usually  unsuccessful, 
that  he  often  lost  his  right  on  account  of  a  tenement's  falhng 
into  the  dead  hand,  and  that  he  seldom  gave  away  or  sold  his 
right.  Baronial  and  ecclesiastical  boroughs  excepted,  the  cus- 
tom of  the  middle  ages,  though  feudal  in  theory,  was  in  practice 
and  substance  that  of  today;  the  king,  that  is  the  state,  not  the 
community  within  which  the  property  lay,  took  property  which 
lacked  an  heir  or  a  mesne  lord.  The  chief  reason  why  escheats 
were  so  few  was  that  an  heir  could  be  made  by  a  will,  and  but  for 
neglect  on  the  part  of  the  kinless  holder  to  make  a  devise,  and 
but  for  a  custom  in  some  boroughs  which  prohibited  devise  of 
inherited  realty,  a  custom  which  waned  with  the  middle  ages, 
there  need  have  been  no  such  thing  as  burghal  escheat.  Even 
as  it  was,  compared  with  the  river  of  escheats  which  flowed  from 
the  country  into  the  royal  exchequer  the  stream  from  the  bor- 
oughs was  an  intermittent  rill. 

Forfeiture 

Escheat  is  often  used  to  mean  escheat  and  forfeiture  as  well; 
each  is  a  feudal  incident.     The  history  of  escheat  in  the  boroughs 

to  the  Earl  of  Pembroke  (Matthews,  Cardijf  Records,  i,  p.  347),  and  in  1649  there 
seem  to  have  been  disputes  over  escheats  {ibid.,  p.  430). 

^  C.  P.  R.,  a.  1403,  pp.  307-308.  The  previous  custom  saved  to  the  bishop 
"  all  escheats  of  land  within  the  town  .  .  .  which  shall  always  be  reserved  to  him 
by  reason  of  his  lordship  of  the  town."  In  the  future,  however,  "  if  any  escheat 
from  any  lands  shall  come  to  him  .  .  .  within  the  town,  the  men  of  Maldon  shall 
have  a  rent  as  much  as  the  bishop  used  to  have  from  such  escheats."  The  three 
afore-mentioned  widows  (see  Leicester,  Lynn,  Dover  —  Relief,  p.  20),  who  busied 
themselves  over  homage  and  other  terms  of  which  they  knew  nothing,  released 
escheats  to  the  grantees,  a  meaningless  proceeding  in  this  case. 


34  BURGAGE  TENURE  IN  ENGLAND 

was  usually  and  in  theory  the  same  as  in  the  country;  the  history 
of  forfeiture  seems  to  have  been  different.^  For  forfeiture  was 
more  than  a  feudal  incident,  it  touched  every  free  holder  of  land, 
and  in  the  boroughs  very  humble  men  might  hold  land ;  men  who 
were  quite  as  capable  of  committing  felony  as  feudal  holders, 
and,  so  the  court  leet  records  say,  much  more  apt  to  commit  it, 
though  their  chances  to  be  guilty  of  treason  were  somewhat 
limited.  In  the  country  the  felon's  land  was  subject  to  *  year, 
day,  and  waste  '  by  the  king,^  after  which  it  reverted  to  its  lord 
unless  the  felony  were  treason,  in  which  case  the  king  kept  it. 
Suppose  a  burgess  guilty  of  felony.  Did  the  king  hold  his  tene- 
ment a  year  and  a  day  and  tear  his  house  down,  or,  whether  the 
king  were  or  were  not  the  chief  lord,  did  he  keep  it  for  his  own 
use  ?  Before  coming  to  any  conclusion  it  seems  better  to  let 
the  records  tell  their  story,  for  the  peculiarities  of  burghal  con- 
ditions necessarily  led  to  modifications  and  variations  of  the 
practice,  at  least  in  the  larger  and  commercial  boroughs. 

The  course  of  a  forfeiture  at  Norwich  will  answer  the  question 
for  many  boroughs.  In  28  Edward  I  an  inquisition  was  held 
concerning  two  messuages  in  Norwich  which  had  come  to  the 
king  as  escheats  (forfeitures)  through  the  felony '  of  their  previous 
holders.  Norwich  was  a  royal  borough  and  moreover  each 
messuage  was  subject  to  a  rent  to  the  king's  farm,  and  was  there- 
fore an  original  burgage;  the  king  was  lord  of  the  borough  and 
ultimate  lord  of  the  messuages.  The  felons  did  not  hold  of  the 
king  however;  had  they  done  so  their  messuages  would  have  gone 
directly  to  him  an^-way;  one  felon  held  his  tenement  of  St.  Olave's 
church,  the  other  of  St.  Augustine's.  The  churches  therefore 
were  mesne  lords  and  there  may  have  been  others.  Following 
the  feudal  custom  the  king  would  have  had  the  right  to  his  year, 
day,  and  waste,  after  which  the  churches  would  have  had  at 
least  the  land.  Such  was  not  the  result  however;  the  churches 
apparently  retained  their  rents  but  the  king  got  the  messuages. 
At  Norwich,  in  this  instance  at  least,  the  king's  rights  overrode 

'  Forfeiture  of  chattels  is  aside  from  our  subject. 

*  The  familiar  annus,   dies,  et  vastus  of  the  sources.      '  Waste  '  is  sometimes 
called  '  strip,'  the  right  to  denude  or  strip  the  felon's  lands  of  trees,  buildings,  etc. 
'  But  not  treason;   in  such  a  case  the  name  is  used. 


THE  INCIDENTS  OF  BURGAGE  TENURE  35 

those  of  mesne  lords;  the  forfeitures  went  directly  to  him  to  be 
dealt  with  as  he  saw  fit,  so  there  is  no  question  of  year,  day,  and 
waste.^ 

In  London  both  forfeiture  and  escheat  were  always  the  king's, 
whose  right  thereto  was  well  recognized  by  the  citizens  and  was 
a  frequent  matter  of  record  by  the  courts.  In  a  plea  before  the 
royal  justices  a  somewhat  quaint  reason  why  this  should  be  so 
was  given;  i.  e.,  that  because  no  citizen  owed  homage  or  fealty 
to  any  one  but  the  king,  therefore  no  one  should  have  an  escheat 
but  him.  Though  burgesses  did  not  do  homage  they  swore 
fealty;  that,  however,  is  no  reason  at  all  for  mesne  lords'  losing 
their  right  to  escheat.  For  the  real  cause  one  must  look  deeper 
and  among  vulgar  commercial  transactions  rather  than  chival- 
rous feudal  formulas. 2      Canterbury  had  the  same  custom  as 

^  Stanley  v.  Mayor,  etc.,  of  Norwich,  f.  16,  a.  1300.  According  to  the  Norwich 
customal  this  was  not  the  usual  course  of  forfeiture  in  that  city;  a  felon's  tenements 
should  go  to  the  chief  lord,  who  pays  an  appraised  value  as  year,  day  and  waste: 
"  et  in  casu  ubi  f ugitivus  terram  abjurans  habeat  terras  et  tenementa  in  civitate  et  Ula 
tenuerit  de  aliquo  concive  .  .  .  per  certum  servicium  aimuurn  unde  eschaeta  .  .  . 
debuerit  .  .  .  accedere  .  .  .  apprecietur  annus  et  vastus  ...  ad  opus  domini 
Regis  "  (Hudson  and  Tingey,  Records  of  Norwich,  i,  p.  140).  It  is  hardly  likely 
that  there  were  two  rules  for  forfeiture  in  Norwich,  one  for  lay  and  the  other  for 
spiritual  chief  lords.  Yet  in  2  Ed.  Ill:  "  R.  le  T.  tenuit  unum  messuagium  de 
priore  Sancte  Trinitatis  Norwici,  et  idem  R.  fecit  quandam  feloniam  .  .  .  et  eo 
prete.xtu  idem  prior  dictum  messuagium  seisiviset  tanquam  escaetum "  {Cal- 
endarium  Rokdortcm  Chartarum  et  Inquisitionum  ad  quod  damnum,  p.  289).  The 
two  messuages  of  the  record  of  1300  never  went  to  their  chief  lords;  the  king, 
Edward  I,  sold  them:  "  Extension  to  G.  de  W.  of  Norwich  ...  in  consideration 
of  a  fine  "  (at  the  exchequer)  "  of  a  grant  "  of  two  messuages  in  Norwich  "  escheated 
to  the  king  by  reason  of  .  .  .  felony"  (C.  P.  R.,  a.  1300,  p.  558).  The  result 
was  the  same  in  either  case;  the  king  got  the  tenement  itself  or  its  value. 

^  In  London  forfeiture  and  escheat  are  always  the  king's,  as  declared  before  the 
justiciary,  Hubert  de  Burgh,  in  5  and  10  Henry  III  {Plac.  Westmon.  Abbr., 
p.  310).  Conditional  estates  however  did  not  escheat  to  the  king  {ibid.,  pp.  310  and 
317)- 

In  1227  the  king  granted  land  "  which  is  the  king's  escheat  according  to  the 
liberty  of  the  city  of  London,  whereby  all  forfeitures  of  whomsoever  they  are  held 
escheat  to  the  king,  as  admitted  at  the  court  held  before  the  king  at  the  Tower  " 
(C.  C.  R.,  i,  p.  51). 

The  custom  of  London  in  the  matter  of  both  escheat  and  forfeiture  is  definitely 
explained  in  a  so  far  unpublished  record  of  2  Ed.  II:  "  Major  et  cives  dicunt  quod 
omnes  escaetae  infra  libertatem  civitatis  Londoniae  de  quocumque  terrae  teneantur- 
sunt  domini  regis  sive  escaetae  per  feloniam  sive  alio  mode  "  (P.  R.  O.,  coram  rege, 


36  BURGAGE  TENURE  IN  ENGLAND 

London  in  regard  to  forfeiture  '  and  escheat  as  well,  the  king's 
right  to  the  latter  being  confirmed  by  a  jury  of  the  citizens  em- 
panelled to  settle  a  dispute  arising  out  of  the  ownership  of 
tenements  which  a  burgess  claimed  to  hold  by  hereditary  descent 
of  the  aldermanry  of  Westgate.^  London  and  Canterbury  are 
not  peculiar  in  their  custom  in  respect  to  forfeiture.  At  Oxford,' 
Grimsby,'*  Newcastle-on-Tyne,^  and  very  probably  at  Bristol,* 
and  York,^  mesne  lords  had  lost  their  right  to  forfeitures  and  had 
been  reduced  to  what  Maitland  called  '  men  with  rent-charges.' 
When  it  was  legally  decided  that  this  was  because  the  burgesses 

194,  m.  85:  the  above-quoted  pleas  of  s  and  10  Henry  III  are  also  cited  as  previous 
records). 

In  3  Ed.  II  the  king  by  judgment  secured  a  messuage  in  London  belonging  to  a 
bastard  who  died  without  heirs;  again  it  was  declared  that  all  escheats  in  London 
belonged  to  the  king  (P.  R.  O.,  coram  rege,  199,  m.  80,  extracts  from  5  and  10 
Henry  III  given  on  m.  86  dorse).  "  Et  hac  racione  debet  dominus  rex  habere 
hujusmodi  escaeta  [i.  e.,  both  forfeiture  and  escheat]  et  non  alius  quia  nullus  de 
civitate  debet  facere  homagium  vel  fidelitatem  nisi  tantum  domino  regi  "  {coram 
rege,  m.  80  dorse).  This  is  the  fanciful  and  inconsequent  reason  mentioned  in  the 
text. 

'  Plac.  Weslmon.  Abbr.,  p.  319.  In  8  Edward  II  in  the  course  of  a  suit  before 
the  royal  justices  at  Westminster  it  was  decided  that  the  king  had  all  forfeitures 
in  Canterbury. 

^  The  question  at  issue  was  whether  tenements  held  of  this  aldermanry  should 
escheat  to  the  burgess  or  the  king,  "  ct  super  hoc  jur[atores]  istius  civitatis  quesiti 
si  quis  habeat  escaetam  in  civitate  ista  alius  quam  dominus  rex  dicunt  per  sacra- 
mentum  quod  non  "  (P.  R.  O.,  coram  rege,  256,  m.  141). 

*  Calendarhim  Inquisilionum  ad  quod  damnum,  p.  302,  no.  26,  11  Ed.  Ill: 
"  unum  toftum  ...  in  suburbio  [Oxoniae]  quod  fuit  Vini  le  Longe  pro  felonia  quam 
idem  Vinus  fecit  suspcnsus  et  quod  ad  manus  Regis  ut  escaeta  [forfeiture]  devenit." 

*  H.  M.  C,  Rep.,  14,  app.,  pt.  8,  p.  245. 

^  Calendarhim  Inquisilionum  ad  quod  damnum,  p.  342,  50  Ed.  Ill:  {.he  juralores 
"  dicunt  quod  omnia  tcrrae  et  tenementa  ...  in  Novo  Castro  super  Tynam  .  .  . 
et  que  ad  manus  domini  regis  tanquam  escaetae  devencrunt  pro  eo  quod  feloniam 
fecit." 

*  Pike,  Yearbooks  of  the  Reign  of  Edward  the  Third,  years  xiv  and  xv,  p.  186 
(Michaelmas  term,  a.  1340).  John  de  Berkelay  brought  a  writ  of  escheat  against 
John  de  Weston,  demanding  a  messuage  in  the  suburbs  of  Bristol.  The  defendant 
claimed  that  the  king  should  have  all  felonious  escheats,  of  which  this  was  one; 
and  that  he  had  been  cnfcofTed  by  the  king.  There  is  no  record  of  judgment, 
but  on  the  pleadings  the  plaintiff  seems  to  be  entitled  thereto.  See  ibid.,  pp.  184- 
188. 

^  C.  P.  R.,  a.  1279,  p.  337.  The  mayor  (with  others)  was  empowered  to  sell 
forfeited  tenements.  The  felons  were  Jews.  See  ibid.,  a.  1283,  p.  85,  where  the 
king  grants  forfeited  tenements  in  Montgomery. 


THE  INCIDENTS  OF  BURGAGE  TENURE  37 

owed  homage  and  fealty  to  no  one  but  the  king,  the  court  was 
not  even  stating  a  fact,  much  less  giving  a  reason.  For  the 
reason  one  must  look  to  general  conditions  and  tendencies  in  the 
boroughs,  particularly  in  regard  to  lands  and  tenements.  Take 
London  as  an  example.  It  was  a  royal  borough,  but  besides 
the  king,  all  sorts  and  conditions  of  men  —  nobles,  bishops  and 
abbots,  laymen  and  religiosi  of  all  degrees  —  held  tenements 
therein.  At  one  time  there  were  many  separate  jurisdictions 
(sokes),  but  the  king  was  the  only  practical  source  of  privileges 
and  to  him  the  burgesses  looked.  He  could  and  did  grant  liber- 
ties over  mesne  lords'  heads,  and  the  rights  of  those  who  had  sac 
and  soc  gradually  diminished  till  only  a  few  sokes  remained. 
Contemporaneously,  tenements  were  bought  and  sold,  some  of 
them  many  times.  Where  and  who  were  the  '  chief  lords  '  of 
these  tenements  ?  There  had  in  one  sense  never  been  chief 
lords  for  some.  The  lord's  rights,  escheat  it  would  seem  among 
them,  gradually  shp  away  from  him;  the  king's  take  their  place, 
for  he  never  dies  and  always  his  functions  increase. 

One  should  not  assume  this  process  to  be  universal;  in  the 
baronial  and  abbatial  boroughs  and  even  in  many  royal  boroughs 
one  finds  the  lord  retaining  his  escheats  when  he  can,  but  the 
king  does  not  take  them.  Probably  this  is  because  of  the  lack 
of  commerce  and  the  consequent  comparative  simplicity  of  the 
tenure  in  such  places:  the  rungs  in  the  ladder  were  few  and  easy 
to  be  seen.  In  London  and  other  trading  towns  tenurial  heter- 
ogeneity had  caused  the  ladder  to  fall  to  pieces:  the  king  took 
all.i 

While  it  is  apparent  that  in  such  cities  as  London,  Bristol, 
and  others  of  like  class  any  lord  who  stood  between  the  king  and 
the  felon  lost  his  right  to  forfeitures,  yet  in  some  of  the  grants  or 

^  The  king  had  a  large  source  of  income  from  his  forfeitures,  or  had  a  chance 
to  get  such  unless  he  chose  to  forego  it  by  giving  them  away.  The  Hundred  Rolls 
contain  many  such  records  as:  "  juratores  dicunt  quod  domus  quod  fuit  J.  de  M. 
per  excaitam  [i.  e.,  forisfacturam]  fuit  in  manu  domini  regis  Henrici  et  dedit  earn 
R.  W."  {R.  H.,  i,  p.  427).  Other  instances  of  '  giving  '  are  frequent  though  no 
doubt  there  was  often  a  fine  at  the  exchequer.  Sometimes  the  felony  or  treason 
is  to  be  inferred,  as  in  the  following  record:  "  juratores  dicunt  quod  quedam 
domus  .  .  .  fuit  excaeta  [forf.]  domini  regis  per  mortem  W.  E.  .  .  .  detracti  " 
{R.  H.,  i,  p.  430);  when  one  has  been  *  drawn  '  the  rest  may  be  taken  for  granted. 


38  BURGAGE  TENURE  IN  ENGLAND 

regrants  of  tenements  which  had  been  forfeited  on  account  of 
felony  the  king  seems  to  have  kept  mesne  lords  in  mind.  Henry 
III  did  not  forget  the  mesne  lords  when  he  gave  a  few  forfeited 
London  tenements,'  part  to  the  bishop  of  Chichester  ^  and  part 
to  Hubert  de  Burgh,  and  even  in  a  grant  to  a  simple  citizen  the 
chief  lord  was  guaranteed  his  rent.^  At  Oxford  and  Cambridge 
there  are  instances  of  retention  of  rents  by  chief  lords  notwith- 
standing forfeiture  of  the  tenements  to  the  king.*  This  specific 
saving  of  his  service  to  the  lord  of  the  fee  seems  unnecessary  on 
the  king's  part;  such  services  were  of  the  nature  of  liens  on  the 
forfeited  tenements  and  as  such  would  still  be  payable  to  their 
holders.  They  were,  however,  usually  so  small  that  it  made  little 
difference  whether  the  former  lord  retained  them  or  not,  and  it 
may  be  that  the  king  himself  was  at  times  the  chief  lord  whose 
services  were  saved.  This  seems  to  have  been  the  case  in  respect 
to  a  tenement  in  London  granted  to  the  Earl  of  Pembroke  by 
Henry  III;  ^  it  may  be  and  probably  is  exceptional,  for  in  the 
bulk  of  the  grants  of  such  tenements  there  is  either  no  mention 
whatever  made  of  any  services,  or  else  their  nature  indicates 
that  they  are  not  owed  to  the  king.* 

*  C.  C.  R.,  i,  pp.  67-88,  a.  1227.  The  London  custom  as  regards  forfeiture 
is  recited,  but  the  lords  of  the  fee  are  saved  their  rents  and  services. 

»  Ibid.,  p.  68. 

'  Ibid.,  p.  68.  The  tenement  was  the  "  king's  escheat  for  forgery  ";  the  grant 
(  ?  sale)  concludes:  "  saving  to  the  lords  of  the  fee  their  due  service."  In  1228 
in  a  grant  of  tenements  to  William  Marshal,  Earl  of  Pembroke,  the  earl  is  "  to  hold 
the  same  by  rendering  the  services  due  to  the  lords  of  the  fee  "  (ibid.,  p.  74).  In 
the  other  grants  there  was  a  rent  to  the  king  in  each  case  as  well  as  one  to  the  chief 
lord. 

*  C.  C.  R.,  i,  p.  66.  In  1227  the  king  granted  a  tenement  in  Oxford  "  which 
is  the  king's  escheat  "  (forfeit)  to  Robert  Brain  who  however  must  do  "  the  service 
due  to  the  lord  of  the  fee  "  and  pay  a  rent  to  the  king  as  well.  In  1224  the  men  of 
Cambridge  made  fine  for  40  marks  to  get  a  house  which  had  belonged  to  Benjamin 
the  Jew,  and  which  was  then  in  the  king's  hands.  The  tenement  rendered  to  the 
king  "  one  mark,  and  to  the  chief  lord  .  .  .  two  shillings  per  annum  "  (Cooper, 
Cambridge,  i,  p.  39).  The  chief  lord  kept  his  rent,  which  the  burgesses  must  here- 
after pay  to  him.  Was  he  or  the  king  chief  lord  thereafter  ?  The  king,  undoubtedly; 
the  burgess  is  now  a  man  with  a  rent-charge. 

'  C.  C.  R.,  i,  p.  79,  a.  1228.  The  earl  at  once  sold  the  house  and  in  his  deed 
saved  "  the  service  of  the  chief  lord  of  the  fee,  that  is  8d.  yearly  for  the  socage 
of  the  king." 

*  As  at  Norwich  where  the  grant  of  forfeited  tenements  of  a  previous  quotation 


THE  INCIDENTS  OF  BURGAGE  TENURE  39 

The  scanty  records  of  felonious  escheat  in  baronial  or  epis- 
copal boroughs  seem  to  indicate  that  the  forfeitures  there  were 
the  bishop's  or  baron's,  and  that  the  king  did  not  interfere. 
Whether  the  baron  in  his  barony  overrode  mesne  lords'  claims 
as  did  the  king  in  his  kingdom  is  not  sure  but  is  very  probable. 
This  seems  to  be  the  case  at  New  Ross  in  Ireland  where  the  lord 
of  the  borough,  R.  Bigod,  certainly  got  forfeitures/  while  there 
is  no  doubt  that  the  borough  lord  took  forfeitures  at  Maldon  ^ 
where  he  sold  his  right  to  the  burgesses,  or  at  Farnham  ^  where 
he  retained  it. 

One  cannot  go  very  deeply  into  the  question  of  forfeitures 
without  noticing  how  large  an  amount  of  real  property  was  taken 
from  the  Jews  in  the  latter  haK  of  the  thirteenth  century.  Such 
seizures  were  sometimes  legitimate  enough,  but  many  of  them 
consisted  in  nothing  but  preferring  a  charge  of  felony  as  a  pre- 
liminary to  taking  a  Jew's  tenement.  The  importance  of  this 
subject  here  does  not  lie  in  its  connection  with  the  tenure  under 
which  the  Jews  held  their  tenements,  for  they  held  as  did  the 
burgesses,  under  burgage  tenure,  nor  yet  as  illustrating  the  fact 
that  a  Jew  and  his  property  were  the  king's,  but  as  showing  how 
far  the  king  controlled  forfeiture.  Unless  he  had  the  right  to 
felonious  escheat  regardless  of  the  mesne  lord  the  king  could 
not  have  seized  a  tenement  held  by  a  Jew  more  easily  than  a 
tenement  held  by  any  one  else,  excepting  of  course  the  case  where 

specifies  the  king's  service,  id.,  and  adds  "  and  doing  the  services  therefor  due  and 
accustomed  to  the  other  lords  of  that  fee,"  /.  e.,  the  churches  (Stanley  v.  Mayor, 
etc.,  f.  22).  The  bulk  of  royal  grants  of  forfeited  tenements,  those  in  London 
being  naturally  the  greatest  in  number,  have  no  word  of  saved  services. 

^  Hore,  Wexford,  i,  p.  151.  In  1284-85  the  praepositus  of  New  Ross  accounted 
for  the  rent  of  a  certain  escheat  in  the  earl's  hand  for  felony.  In  1280-81  he  had 
accounted  for  "  stalls  .  .  .  taken  into  the  hand  of  the  Earl  by  escheat"  (ibid.,  p.  143); 
the  "  taken  "  seems  to  indicate  that  they  were  forfeitures.  The  earl  of  the  accounts, 
R.  Bigod  the  marshal,  seems  to  have  had  a  sort  of  palatine  jurisdiction  in  Ireland 
at  this  period  and  may  have  been  taking  forfeitures  in  that  capacity,  but  the  prob- 
ability is  against  it,  the  escheats  apparently  coming  from  his  own  barony  (ibid., 
p.  66). 

2  C.  P.  R.,  a.  1403,  p.  308.     The  bishop  of  London  was  lord  of  Maldon. 

^  Parliamentary  Papers,  1835,  xxiv,  p.  732.  In  1452  William  of  Waynflete, 
bishop  of  Winchester,  granted  Farnham  to  its  burgesses,  escheats  of  felons'  tene- 
ments and  chattels  excepted. 


40  BURGAGE  TENURE  IN  ENGLAND 

the  king  was  chief  lord,  as  he  would  be  if  the  burgage  were  original 
or  if  the  holder  had  bought  it  outright;  for  in  a  royal  borough 
he  who  holds  of  no  one  else  holds  of  the  king.^  The  fact  that 
the  king  could  acquire  so  much  real  property  under  cover  of 
charges  of  felony  shows  the  far-reaching  influence  of  the  central 
government  in  the  matter  of  forfeiture.^ 

In  the  royal  boroughs  so  far  dealt  with  forfeiture  was  the  king's; 
there  was  consequently  no  question  of  year,  day,  or  waste. 
There  were  other  royal  boroughs  however  where  the  custom  in 
respect  to  forfeiture  was  quite  different,  and  whose  customs  in 
this  matter  differed  among  themselves.  At  Sandwich  the  king 
had  year  and  day  of  a  felon's  tenement,  which  then  passed  to  the 
community.^  At  DubUn  the  king  had  year  and  day,  the  tene- 
ment then  reverting  to  the  chief  lord.^  At  Rye  the  mayor,  prob- 
ably for  the  community,  had  year  and  day  of  the  felon's  realty, 
which  then  went  to  his  heir,  or  if  he  should  have  none,  to  the 
chief  lord.^     At  Dover  a  distinction  was  made  between  a  felon 

'  The  alternative  conclusion  is  that  mesne  lords  had  no  rights  at  all,  except 
to  rent-charges;  the  course  of  escheat  shows  that  they  had  rights,  save  in  London 
and  a  few  other  large  towns. 

*  A  process  at  Lincoln  illustrates  one  of  the  methods  used  by  the  central  govern- 
ment to  acquire  tenements  held  by  Jews.  It  is  certainly  not  escheat  in  the  true 
sense  of  the  word  and  not  a  felony  in  the  ordinary  sense,  yet  it  entailed  forfeiture 
all  the  same:  according  to  a  "  report  from  the  Justices  of  the  Jews  .  .  .  the  said 
heirs  appear  from  the  rolls  of  the  Exchequer  of  the  Jews  to  have  made  no  fine  to 
have  the  said  house,  which  is  consequently  the  king's  escheat,  to  give  to  whom  he 
will  "  (C.  C.  R.,  ii,  p.  224,  a.  1280.     See  also  C.  /.  M.,  i,  p.  242,  54  Henry  III). 

'  Boys,  Sandwich,  p.  463:  "  If  the  accused  be  convicted  "  (of  felony)  "  and 
suffer  judgment,  his  goods  are  forfeited  to  the  king,  and  his  houses  and  rents  within 
the  liberty  to  the  mayor  and  commonalty,  after  the  king  has  possessed  them  for  a 
year  and  a  day  ";  there  is  no  word  of  waste. 

*  Gilbert,  Records  of  Dublin,  i,  p.  88,  c.  a.  1225-54:  "  Should  a  tenant  of  this 
class  "  (i.  c,  one  who  holds  a  tenement  in  fee  from  a  citizen)  "  be  guilty  of  felony, 
or  otherwise  forfeit  his  tenement,  the  latter  remains  in  the  King's  hands  for  a  year 
and  a  day,  after  which  it  reverts  to  the  citizen  from  whom  it  was  held  ":  again  no 
word  of  waste.  This  clause  of  the  customal  is  probably  for  all  other  chief  lords 
than  the  king. 

'  Cuilomal  0}  Rye,  quoted  by  Lyon,  Dover,  ii,  p.  349:  "  if  he  [the  felon]  be  com- 
mitted [i.  e.,  convicted]  then  all  his  goods  be  forfeited  to  the  town,  and  all  his 
house  rents  and  possessions,  being  of  the  franchise,  shall  be  in  the  mayor's  hands 
for  a  year  and  a  day,  and  then  to  return  to  the  heir  of  him  that  is  appealed.  And 
if  no  heir,  then  to  the  tenant  of  the  lord  of  the  fee." 


THE  INCIDENTS  OF  BURGAGE  TENURE  41 

who  left  his  country  for  his  country's  good  and  one  who  remained 
to  be  hanged.  He  who  went  must  keep  the  highway  to  the  port, 
not  a  hard  condition  at  Dover,  and  if  he  left  the  country  the  king 
had  year  and  day  of  his  tenements  (without  waste),  which  then 
reverted  to  the  chief  lord.  If,  however,  the  felon  suffered  death, 
while  the  king  had  year  and  day  as  before,  the  tenements  went 
to  the  felon's  heir,  a  plain  inducement  to  stay  and  be  hanged.^ 

Such  is  forfeiture  in  Dublin  and  the  Cinque  Ports.  How 
long  they  had  had  these  customs  is  unknown.  The  Dubhn 
customal  is  probably  the  oldest.  Its  date  is  problematical.^ 
Of  those  of  the  Cinque  Ports  the  Rye  customal  is  the  oldest  in 
compilation.  Most  of  the  rest  were  drawn  up  in  the  fifteenth  cen- 
tury.^ How  '  customary  '  they  were  is  shown  by  the  differences 
in  regard  to  forfeiture.  They  agree  in  this,  that  the  king  never 
retained  a  felon's  messuage  beyond  a  year  and  a  day  and  that 
there  was  no  waste,  but  the  ultimate  destination  of  the  tenement 
varied  among  chief  lord,  heir,  and  commonalty.  The  customal 
does  not  state  what  happened  at  Dover  to  the  tenements  of  a 
felon  who  did  not  '  leave  the  way  to  the  port,'  nor  in  what  it 
advantaged  any  one  but  his  heir  if  he  chose  to  stay  and  be 
hanged,  or  thrown  from  Sharpness.*     It  would  not  be  surprising 

^  Customal  of  Dover,  quoted  by  Lyon,  Dover,  ii,  p.  271:  "  if  he  went  out  of  the 
way,  he  forfeited  his  tenements  to  the  king,  for  the  holding  a  year  and  a  day  without 
waste;  and  after  the  year  and  a  day  then  to  the  lord  of  the  fee,  if  any;  but  when  a 
felon  suffers  death,  the  king  shall  have  all  the  profit  of  his  lands  and  tenements  a 
year  and  a  day,  and  then  they  shall  be  delivered  to  the  heir  in  gavelkind." 

Heir  in  gavelkind  probably  means  only  the  heir  under  the  non-military  tenure 
which  was  peculiar  to  Kent;  burgage  tenure,  being  non-military,  would  be  con- 
sidered of  the  same  nature.  The  burgesses  of  Canterbury  and  Dover  held  "  gavel- 
kind land  in  and  routfd  the  bounds  of  their  cities  "  (Elton,  Tenures  of  Kent,  p.  152). 
In  Kent  a  felon's  heir  did  not  lose  his  land;  '  the  father  [went]  to  the  bough,  the 
son  to  the  plough.'     See  Pollock  and  Maitland,  History  of  English  Law,  i,  p.  187. 

*  The  Dublin  and  the  Bristol  custom  differ  in  respect  to  forfeiture.  The  former 
city  had  Danish  customs  from  an  early  date. 

^  In  her  collection  of  Borough  Customs  Miss  Bateson  has  been  at  great  pains 
to  date  nearly  every  compilation.  Such  dates  are  of  value  when  there  are  two  or 
more  compilations  which  differ  from  each  other  and  so  show  how  customs  in  a  bor- 
ough might  change,  for  we  know  that  oftentimes  they  did  change,  —  that  was  one 
of  the  advantages  of  a  customal.  Otherwise  an  approximate  date  is  sufl&cient; 
customs  are  always  older  than  the  customal  which  embodies  them. 

*  The  felon's  death  at  Dover.  See  Lyon,  Dover,  ii,  p.  272.  Probably  one  who 
left  the  way  was  put  to  death,  the  usual  custom. 


42  BURGAGE  TENURE  IN  ENGLAND 

if  Dover  heirs  often  urged  their  felon  fathers  not  to  abjure  the 
realm. 

At  times  the  king  granted  the  right  to  take  forfeitures  to  a 
borough,  though  not  necessarily  in  perpetuity,  in  answer  to  a 
petition  from  the  burgesses,  who  commonly  pleaded  their  pov- 
erty or  their  calamities.  Cambridge  *  and  Huntingdon  ^  had 
such  grants.  Henry  V  released  '  forfeited  issues  '  to  the  mayor 
and  community  of  Leicester,^  but  whether  he  allowed  them  to 
keep  such  is  not  certain;  the  reference  may  be  only  to  issues 
which  the  town  has  forfeited.  Edward  IV  granted  year,  day, 
and  waste  of  a  felon's  or  an  outlaw's  tenement  to  the  citizens 
of  Rochester  *  and  the  burgesses  of  Ludlow ;  *  in  these  instances 
it  seems  as  if  the  chief  lord  had  retained  the  reversion  after  a 
year  and  a  day. 

From  the  face  of  this  grant  it  may  seem  that  Ludlow  and  Roch- 
ester should  be  placed  among  such  boroughs  as  Dublin  and  the 
Cinque  Ports  with  regard  to  their  later  custom  in  respect  to 
forfeiture;  possibly  alongside  Rye,  for  it  is  apparent  that,  when 
the  king  granted  his  right,  this  right  lasted  only  a  year  and  a 
day.  It  is  equally  apparent,  however,  that  it  entailed  waste: 
Ludlow  and  Rochester  belonged  therefore  with  neither  Dublin 
nor  the  Cinque  Ports  but  were  plainly  boroughs  where  the  feudal 
rule  of  forfeiture  prevailed  till  within  a  few  years  of  the  close  of 
the  middle  ages,  being  then  modified  only  to  the  extent  of  a 
transfer  of  year,  day,  and  waste  from  the  central  to  the  burghal 
government.      These  Ludlow  and  Rochester  records  are  more 

*  Cooper,  Cambridge,  i,  p.  130,  a.  1385.  In  consequence  of  two  disastrous 
fires  the  king  granted  that  the  burgesses  "  should  for  ever  have  all  fines,  .  .  . 
issues,  and  forfeitures,  .  .  .  touching  any  free  tenement  in  the  town  ...  as 
well  before  .  .  .  escheators." 

*  Mcrewcther  and  Stephens,  History  of  the  Boroughs,  ii,  p.  661,  a.  1363.  The 
gift  was  to  relieve  the  town,  and  included  other  issues. 

'  Balcson,  Records  of  Leicester,  ii,  p.  227. 

*  Charter  of  Rochester,  p.  16,  a.  1460,  a  grant  of  "  a  year  and  a  day,  strepp  and 
waste." 

'  Ludlou'  Charters,  p.  16,  a.  1461.  "  If  any  of  the  burgesses  of  the  town  afore- 
said .  .  .  shall  be  convicted  for  or  of  felony,  or  condemned,  or  outlawed,  the  same 
burgesses  shall  have  all  the  lands  and  tenements  of  such  ...  for  one  year  and  one 
day  after  such  conviction  .  .  .  and  waste  and  strip  thereof,  and  whatsoever  to 
us  .  .  .  appcrtaineth." 


THE  INCIDENTS  OF  BURGAGE  TENURE  43 

valuable  for  what  they  suggest  than  for  what  they  say,  the  impli- 
cation being  that  the  feudal  rule  in  respect  to  forfeiture  was 
possibly  the  burghal  rule  in  those  drowsy  nests  of  rural  conserva- 
tism, the  smaller  and  more  exclusively  agricultural  boroughs. 
Ludlow  and  Rochester  were  not  alone  in  this  class;  the  proceed- 
ings before  the  royal  justices  show  that  the  same  condition  existed 
at  Shefford,  and  also  that  the  king  might  sell  the  year,  day,  and 
waste,  thus  making  his  own  profit  and  at  the  same  time  some 
one's  else.^  At  Maldon  ^  the  bishop  of  London,  lord  of  the  bor- 
ough, parted  with  all  his  rights  in  respect  to  forfeiture  for  a  lump 
sum  from  the  burgesses.^ 

In  the  case  of  treason  one  would  expect  to  find  the  king  taking 
forfeited  property  anywhere,  and  certainly  in  boroughs  where 
he  took  felonious  escheat.  Forfeitures  for  treason  in  London 
soon  after  the  Barons'  War  *  and  in  Norwich  ^  during  the  Wars 
of  the  Roses  confirm  what  it  seems  scarcely  needful  to  prove. 
When  the  Normans  in  England  were  compelled  to  make  their 

'  Curia  Regis,  no.  161,  m.  6.  "  The  sheriff  of  Bedfordshire  is  ordered  to  inquire 
in  the  county  court  whether  a  burgage  and  one-half  which  Robert  le  Masscrief 
(who  was  hanged  for  felony)  held  in  Shefford  had  been  (extiterint)  in  the  king's 
hand  for  a  year  and  a  day,  and  from  whom  he  held  the  said  burgage  and  a  half, 
and  who  now  holds  them,  and  who  should  have  (habuerit)  the  year  and  day  of  the 
lord  king."  The  inquest  says  that  he  held  them  of  John,  clerk  of  Shefford,  by  ser- 
vice of  igd.  a  year;  but  they  had  been  in  the  king's  hand  for  a  year  and  a  day, 
that  Warin,  son  of  Gerald,  had  year,  day,  and  waste  by  sale  of  Robert  of  Thurkelby, 
itinerant  justice  in  that  coimty,  and  that  the  said  Warin  ought  to  answer  for  the 
same.  The  inquest  also  says  that  W.  Bonseriant  now  holds  them  by  sale  of  said 
Warin. 

2  C.  P.  R.,  a.  1403,  p.  308. 

^  Occasionally  a  borough  seems  to  have  exercised  a  sort  of  forfeiture  of  property 
for  non-payment  of  the  burgage  rent.  At  Dublin  in  1261  a  tenement  "  escheated  " 
(was  forfeited)  "  to  the  city  for  non-payment  of  landgable  for  thirty  years  and  up- 
wards "  (Gilbert,  Records  of  Dublin,  i,  p.  93),  and  in  1262-63  the  mayor  and  com- 
monalty of  the  same  city  granted  a  vacant  place  "  escheated  to  the  city  for  arrears 
of  rent  "  {ibid.,  i,  p.  95),  but  this  was  probably  part  of  the  commimal  property.  At 
times  a  borough  might  keep  a  forfeiture  not  its  own.  Hedon,  which  had  kept 
escheats,  retained  at  least  one  forfeiture  among  them  (Boyle,  Hedon,  p.  223). 

*  C.  /.  M.,  i,  p.  197:  in  50  Henry  III  "  certain  houses  .  .  .  were  taken  into  the 
king's  hand  because  W.,  the  king's  enemy,  last  held  them." 

^  Stanley  v.  Mayor,  etc.,  f.  47:  in  1465  there  was  an  inquisition  in  Norwich 
concerning  tenements  held  by  a  certain  "  gentleman,  a/iaj  attorney:  ...  by  his 
attainder  by  act  of  Parhament  the  premises  appertain  to  the  king  as  forfeited." 
Gentlemen  who  were  also  attorneys  might  be  few  at  that  date. 


44  BURGAGE  TENURE  IN  ENGLAND 

choice  between  French  and  English  allegiance  the  king  seems 
to  have  confiscated  much  of  the  burghal  property  of  those  who 
went;  they  had  become  the  king's  enemies  and  as  such  were  in 
a  way  guilty  of  treason.  For  a  century  and  a  half  such  tenements 
are  met  with,  still  retaining  the  name  of  '  lands  of  the  Normans.'  ^ 

And  now  to  try  to  answer  the  question  asked  at  the  beginning 
of  this  topic  —  did  forfeiture  in  the  boroughs  have  the  feudal 
meaning  of  year,  day,  and  waste  to  the  king,  followed  by  rever- 
sion to  the  chief  lord  ?  It  apparently  did  in  Ludlow,  Rochester, 
Shefford,  and  very  probably  in  other  small  boroughs  of  the  same 
class.  In  the  Cinque  Ports  there  was  no  waste,  and  the  same 
appears  substantially  true  of  most  of  the  larger  boroughs.  Even 
in  the  few  instances  where  waste  may  be  impUed  it  can  seldom 
mean  the  waste  of  the  feudal  land  law :  dominus  rex  himself  would 
find  it  difficult  to  waste  the  second  story  or  the  cellar  of  a  three- 
story  house,  each  or  even  a  part  of  which  was  often  a  burgage 
tenement  in  the  larger  towns. 

In  general  our  conclusion  is  that  while  escheat  was  the  chief 
lord's,  except  in  London  and  a  few  other  places  where  there  had 
been  so  much  transfer  of  realty  in  the  modern  way  that  all  lords 
but  the  king  had  been  lost  sight  of,  forfeiture  was  the  king's. 
The  rule  for  the  boroughs  was  that  mesne  lords  lost  their  right 
to  reversion  after  year  and  day;  in  some  indeed  perhaps  they  had 
never  had  it.  There  were  exceptions  however,  such  as  Dublin  and 
the  Cinque  Ports,  but  the  latter  were  exceptional  boroughs  in 
other  ways  as  well.  In  baronial  and  episcopal  boroughs  forfeiture 
was  the  borough  lord's,  and  in  these  and  other  small  uncom- 
mercial towns  year,  day,  and  waste  probably  prevailed. 

The  cause  for  the  course  of  escheat  in  London  and  a  few  other 
large  cities  is  the  fluidity  of  burghal  realty.  This  will  explain 
the  course  of  forfeiture  also  in  the  same  places,  but  will  not  suf- 

'  R.  II.,  ii,  p.  231.  At  Chippenham  in  1279  "  juratores  dicunt  Henricus  rex 
[secundus]  .  .  .  dedit  .  .  .  tcrre  in  eodem  burgo  Wiilelmo  .  .  .  Normanno  .  .  , 
et  nunc  accidit  domino  regi  per  escaetam  ut  terra  Normannorum." 

C.  C.  R.,  i,  p.  455.  At  Marlborough  in  1256  the  king  gave  a  messuage  which 
was  in  his  hand  "  as  an  escheat  of  the  lands  of  the  Normans."  Probably  the  lords 
who  forfeited  these  burgages  were  aristocratic  mesne  lords  outside  the  borough 
rather  than  actual  burgess  holders. 


THE  INCIDENTS  OF  BURGAGE  TENURE  45 

fice  to  explain  it  in  the  many  other  royal  boroughs  where  this 
incident  is  the  king's.  Perhaps  the  reason  for  their  custom  can 
best  be  given  by  supposing  a  burgess  in  some  royal  borough, 
say  Cambridge  about  1250,  to  be  guilty  of  felony.  He  is  a  free- 
holder; he  holds  a  burgage  tenement.  He  may  be  a  lineal 
descendant  of  him  who  held  it  in  King  Edward's  day,  but  the 
case  is  improbable.  It  is  more  likely  that  he,  or  some  not  remote 
ancestor  of  his,  has  bought  the  tenement,  that  he  has  no  idea 
nor  care  who  held  it  in  King  Edward's  day,  for  population  has 
increased  and  real  property  has  been  divided.  He  may  have 
bought  it  outright,  though  at  this  period  a  small  rent  is  often 
retained,  he  who  retains  it  being  our  supposed  felon's  chief  lord. 
The  tenement  is  now  forfeited  for  felony.  To  whom,  to  the 
chief  lord  ?  Where  lies  his  right  ?  He  has  been  paid  the  mes- 
suage's value.  To  him  of  whom  the  chief  lord  holds,  the  next 
mesne  lord  ?  What  right  has  he  thereto  ?  '  Mobility  '  has 
eliminated  the  mesne  lords  and  the  king  takes  the  forfeiture. 
In  the  country  it  is  the  estate  and  the  tenure  which  are  vital; 
feudal  law  knows  possession  but  not  ownership.  In  the  impor- 
tant boroughs  it  is  ownership  and  the  person  rather  than  posses- 
sion and  tenure.  No  one  is  prominent  but  the  lowest  holder, 
and  the  king  takes  the  forfeiture  just  as  the  state  would  take  it 
today  if  the  custom  of  forfeiting  a  felon's  lands  and  tenements 
had  not  been  abolished. 

Fealty 

Customals,  court  leet  records,  and  grants  of  tenements  com- 
monly deny  the  existence  of  this  incident  with  the  feudal  defini- 
tion but  affirm  it  in  the  burghal  meaning.  At  Ipswich  "  no 
landholder  of  land  holden  in  this  Towne  by  ffree  Burgage  shall 
doe  .  .  .  fealty  to  any  cheif  lord  for  such  tenements,"  ^  and, 
with  slight  differences  in  the  wording  of  the  clauses  of  their  cus- 
tomals, the  same  is  true  of  Hereford  ^  and  Romney.^ 

^  Domesday  de  Gippewyz,  p.  141;   Bacon,  Annalls  of  Ipswiche,  p.  34,  a.  1290. 

^  Johnson,  Customs  of  Hereford,  p.  25:  "  we  [i.  e.,  the  burgesses]  do  not  use  to  do 
fealty  or  other  foreign  service  to  the  lords  of  the  fees  for  our  tenements." 

^  Customal  of  Romney,  quoted  by  Lyon,  Dover,  ii,  p.  320:  "  no  fealty  .  .  .  shall 
be  due  to  no  lord  of  the  fee  ";  as  clear  as  a  double  negative  can  make  it. 


46  BURGAGE  TENURE  IN  ENGLAND 

From  the  evidence  of  their  customals  it  is  very  plain  that  there 
was  no  such  incident  as  fealty  in  any  of  these  three  boroughs, 
yet  at  Hereford  a  record  of  a  plea  concerning  tenements  therein 
shows  that  their  holder  had  sworn  fealty.*  The  reference  is  to 
the  oath  to  be  faithful  to  the  king  or  lord  of  the  borough  and  to 
the  borough  customs;  the  fealty  whose  existence  the  customals 
deny  is  the  fealty  of  feudalism.  Every  burgess  must  take  this 
*  burgess-oath  '  of  fealty  before  the  town  magistrates  once  and 
no  more;  ^  feudal  fealty  was  personal  and  might  be  exacted  often. 
In  the  burghal  sense,  therefore,  fealty  was  sworn  at  probably 
every  borough  in  England,^  and  in  most  boroughs,  or  at  least 
in  the  larger  royal  boroughs,  was  probably  much  the  same  as  at 
Colchester,  where  one  who  would  "  enjoy  the  liberties  and  fran- 
chises "  must  "  attend  before  the  Bailiffs  for  the  time  being  and 
take  his  oath  to  the  King  and  to  the  town,  as  Burgesses  were 
wont  to  do  of  old."  ''  During  the  first  part  of  our  period  fealty 
was  sworn  only  on  taking  seisin  of  a  tenement  for  the  first  time, 
but  that  excluded  few,  as  nearly  every  householder  was  a  free- 
holder. Toward  the  close  of  the  middle  ages  the  term  burgess 
applied  to  many  who  were  not  freeholders  and  all  must  swear 
fealty. 

In  many  boroughs,  most  of  which  are  of  the  third  rank,  town 
records,  especially  those  concerning  transfer  of  tenements,  some- 
times mention  fealty.  At  Tewkesbury  if  a  non-burgess  bought 
a  tenement  he  was  obliged  to  come  to  the  next  court,  pay  a  fine, 
and  swear  fealty.^  At  Birmingham  after  the  plague  a  free  bur- 
gage by  fealty  is  said  to  have  grown  up  with  an  oath  to  observe 

^  Madox,  Firma  Burgi,  p.  257:  "  pro  quibus  tenementis  W.  .  .  .  fecit  fidelita- 
tem,"  6  Ed.  II. 

*  Bateson,  Borough  Customs,  ii,  p.  84:  the  juratores  "  dicunt  quod  burgenses 
postquam  semel  fecerint  fidelitatem  "  need  come  no  more  to  court  to  swear  fealty 
on  account  of  other  tenements  which  they  have  bought. 

'  The  Torskey  customal  affords  a  sample  burgess-oath  from  a  small  borough. 
At  that  town  the  burgesses  "  dicunt  quod  quando  aliquis  faciei  fidelitatem  domino, 
debet  eodem  tempore  jurare  quod  debet  sustinere,  defendere,  et  manutenere 
libertates,  consuetudincs,  et  usus  ville  et  consilium  suum  celare  pro  posse  suo  " 
(Bateson,  Borough  Customs,  ii,  p.  84). 

*  Benham,  Red  Paper  Book  of  Colchester,  p.  79,  a.  1452. 

*  Bennett,  Tewkesbury,  pp.  323-324. 


THE  INCIDENTS  OF  BURGAGE  TENURE  47 

the  customs  and  services  of  the  manor. ^  This  incident  was  due 
also  at  Whitby,^  Doncaster,^  Durham,^  Exeter,^  and  was  some- 
times noticed  in  grants  at  such  boroughs  as  Colchester  ^  and 
London.^ 

In  some  of  the  baronial  or  ecclesiastical  boroughs  fealty  had 
more  of  a  feudal  meaning  or  at  least  a  feudal  sound.  At  Wey- 
mouth it  appears  to  have  been  vicarious,  the  elected  town  ofl&- 
cials  swearing  fealty  to  the  borough  lord,*  a  proceeding  which 
seems  to  have  meant  little  more  than  the  swearing  in  of  newly- 
elected  town  officials  means  today.  Even  though  it  should, 
the  fealty  they  did  was  not  an  incident  of  the  tenure,  and  there 
may  have  been  less  fealty  sworn  at  Weymouth  than  at  almost 
any  other  town,  certainly  less  than  at  the  even  humbler  borough 

^  Mrs.  J.  R.  Green,  Town  Life  in  the  Fifteenth  Century,  i,  p.  2cx3,  note  2. 
2  Atkinson,  Whitby,  p.  321. 

*  Hardy,  Records  of  Doncaster,  ii,  p.  20;  Tomlinson,  Doncaster,  p.  28,  note. 
As  usual  it  was  sworn  only  on  taking  up  messuages.  Where  his  wife  is  an  heir  the 
husband  swears  fealty  for  her:  "  O.  H.  does  fealty  for  two  messuages  .  .  .  late 
W.  M.'s,  in  right  of  his  wife  "  (Hardy,  Records  of  Doncaster,  ii,  p.  20,  a.  1506). 

*  Hutchinson,  History  of  Durham,  ii,  p.  12,  note.  The  burgages  were  held  by 
fealty  and  suit  at  the  borough  court. 

^  C.  I.  M.,  Henry  VII,  i,  p.  389.  Half  a  messuage  was  held  of  the  mayor  and 
bailiffs  by  fealty  only.  9  Henry  VII.  In  Kenfig  in  1400  a  burgage  is  held  by 
"  redditus  et  servicia  "  and  a  specification  "  de  jure  consueta,"  probably  fealty 
(Clark,  Cartae  Glamorg.,  iv,  pp.  307  f.). 

*  C.  I,  M.,  Henry  VII,  i,  p.  208.  A  messuage  is  "  held  of  the  prior  of  St. 
Botolph's,  Colchester,  by  fealty."     5  Henry  VII. 

^  Madox,  Firma  Burgi,  p.  118.  A  tenement  whose  holder  had  been  attainted 
"  tenetur  de  Domino  Rege  ut  in  libero  burgagio  .  .  .  per  fidelltatem."  28  Henry 
VIII.  It  may  be  asked  whether  some  of  these  records  do  not  refer  to  fealty  to  a 
lord,  for  the  phrase  '  held  by  fealty  '  certainly  has  that  soimd.  It  is  easy  to  settle  the 
point  from  the  evidence  of  the  London  records  of  transfer  of  property;  there  are 
thousands  of  them  in  existence  and  they  show  that  the  fealty  referred  to  was  only 
the  burgess-oath.  At  Colchester  messuages  (C.  /.  M.,  Henry  VII,  i,  p.  208)  were 
held  of  the  prior  of  St.  Botolph's;  the  fealty  due  from  their  holders  was  sworn  to 
the  town  of  Colchester  and  to  the  king,  lord  of  the  borough.  The  chief  lord  of  the 
messuages  in  the  London  citation  (Madox,  Firma  Burgi,  p.  118)  was  the  city.  Even 
communal  property  was  forfeited  to  the  king. 

*  Moule,  Weymouth,  p.  16.  In  1252  the  prior  of  St.  Swithin's  at  Winchester 
gave  certain  privileges  to  his  burgesses  of  Weymouth,  among  them  "  that  all 
bailiffs  or  officers  of  the  said  borough  .  .  .  may  be  chosen  by  the  burgesses  .  .  . 
and  .  .  .  shall  yearly  ...  be  presented,  who  to  us  .  .  .  and  our  church  .  .  . 
shall  do  fealty." 


48  BURGAGE  TENURE  IN  ENGLAND 

of  East  Grinstead.*  At  Manchester  one  who  acquired  a  tene- 
ment by  inheritance,  and  probably  any  non-burgess  who  bought 
a  burgage,  must  swear  fealty  before  the  lord's  steward,'^  and  this 
imder  the  last  Tudor.  At  East  Teignmouth '  and  Stokecurcy 
fealty  was  owed,  though  in  the  latter  borough  it  seems  to  have 
been  due  the  Earl  of  Northumberland,  warden  of  the  castle  of 
Stokecurcy,  the  messuages  in  question,  though  within  the 
borough  bounds,  lying  in  the  fee  of  the  castle.* 

In  these  little  fishing  or  farming  villages  the  burgess-oath  may 
not  have  been  quite  the  same  as  in  other  boroughs.  Though 
it  gets  a  feudal  tinge  from  being  taken  before  the  lord's  steward, 
the  main  difference  between  it  and  the  usual  burgess-oath  is  in 
the  implication  that  it  said  nothing  of  allegiance  to  the  borough, 
a  condition  which,  if  true,  need  surprise  no  one,  especially  in  the 
backward  boroughs  between  Ouse  and  Trent.  On  the  other 
hand  it  would  seem  that  to  a  dweller  in  one  of  the  older  and 
larger  communities  the  most  important  part  of  his  oath  was 
that  in  which  he  swore  to  be  faithful  to  his  borough ;  the  king 
was  far  off,  personal  knowledge  of  him  was  rare  and  often  not 
desirable,  and  burghal  jealousy  ran  high.  Burghal  fealty  in  the 
earher  part  of  our  period  was  a  tenurial  incident,  an  obligation 
sworn  only  at  acquisition  of  real  property :  the  fealty  of  feudalism 
was  far  wider  and  was  not  a  tenurial  incident. 

'  Hills,  East  Grinstead,  p.  lo.  The  burgesses  held  "  by  fealty  only  and  suit  of 
Court." 

*  Court  Leet  Records  of  Manchester,  i,  pp.  104,  167,  231-233  et  seq. :  "  ad  hanc 
curiam  venit  .  .  .  H.  P.  coram  R.  H.  senescallo  ibidem,  et  juratus  est  domino  " 
(p.  167). 

'  C.  I.  M.,  Henry  VH,  i,  p.  364.  W.  of  Exeter  held  messuages  "  by  fealty  only, 
for  all  services."  8  Henry  VH.  The  fealty  was  due  the  bishop  of  Exeter,  lord 
of  the  borough.  There  were  other  services  however  ;  the  holders  owed  rents  to 
other  lords  but  not  to  the  lord  of  the  borough.  In  West  Teignmouth  the  same 
phrase  is  used  regarding  tenements  held  of  the  dean  and  chapter  of  Exeter. 

*  C.  I.  M.,  Henry  VH,  i,  p.  294.  (For  tenements  on  castle-lands  sec  p.  103.) 
"Twelve  burgages  in  the  borough  of  Stokecurcy  .  .  .  held  of  the  earl  of  North- 
umberland, as  of  the  castle  of  Stokecurcy,  by  fealty  and  12s.  rent  yearly."  It  is  an 
open  question  whether  fealty  were  due  the  town  in  this  case,  though  the  probability 
is  against  it.  The  fact  that  the  Earl  was  lord  of  the  borough  would  render  the 
destination  of  fealty  the  same  in  any  case. 


THE  INCIDENTS  OF  BURGAGE  TENURE  49 

Naturally  the  fealty  of  the  boroughs  had  something  in  common 
with  the  fealty  of  the  country,  burgess  and  knight  or  socager 
swore  to  be  faithful,  but  then  came  the  difference;  though  any 
freeman  might  be  called  on  to  swear  fealty  to  the  king,  such  was 
only  an  oath  of  allegiance;  his  fealty  was  due  also  to  his  immediate 
lord.  An  oath  of  the  latter  sort  would  be  preposterous  in  the 
boroughs.  To  whom  was  a  burgess  to  swear  it  ?  In  most 
cases  the  chief  lord  of  a  tenement  was  a  burgess  Hke  unto  himself; 
indeed  he  might  rank  much  lower  in  the  social  scale.  Fealty 
sworn  to  such  would  be  meaningless.  In  London  the  bishop  of 
Ely  held  tenements  of  Henry  the  Carpenter :  shall  a  bishop  swear 
fealty  to  a  carpenter  ?  ^  Feudal  fealty,  Hke  forfeiture,  cannot 
live  alongside  mobility.^ 

Yet  the  less  of  feudality  there  was  in  connection  with  the  tenure 
the  more  likely  was  the  term  fealty  to  appear  in  connection  with 
the  title  to  real  property,  and  many  messuages  are  '  held  by 
fealty  only.'  The  explanation  however  is  very  simple.  At  any 
time  during  our  period,  though  especially  in  the  later  part,  mes- 
suages were  transferred  by  simple  sale,  no  rent  being  reserved 
by  the  seller.  The  theory  of  the  law  is  possession,  he  who  holds 
of  no  one  else  holds  of  the  king;  the  holder  has  taken  or  must 
take  the  burgess-oath,  therefore  '  he  holds  by  fealty,'  for  there 
is  nothing  else  for  him  to  hold  by. 

Homage 

In  feudal  speech  this  incident  is  commonly  connected  with 
fealty,  '  homage  and  fealty.'  It  has  been  shown  that  the  fealty 
of  the  boroughs  differed  from  the  fealty  of  feudalism ;  for  homage 
there  was  no  place  at  all  in  the  boroughs,  though  the  name  some- 
times occurs  in  such  backward  places  as  Manchester  and  Stock- 
port, where  it  is  used  in  a  way  which  makes  it  appear  almost  to  a 
certainty  to  be  only  another  name  for  fealty.  With  respect  to 
most  of  the  feudal  incidents  customals  of  early  compilation  are 

1  C.  /.  M.,  ii,  p.  478,  18  Ed.  I. 

2  Manchester  and  other  small  places  of  that  sort  either  retain  a  very  archaic 
nature,  or  have  never  acquired  a  purely  burghal  character.  They  have  the  oath 
before  the  lord's  steward  (they  are  all  baronial  or  ecclesiastical  boroughs) ,  the  dagger 
as  heriot,  and  relief  which  was  much  the  same. 


50  BURGAGE  TENURE  IN  ENGLAND 

silent;  such  incidents  were  unknown.  In  some  customals  of 
later  compilation  they  are  noted  though  only  to  be  denied.  As 
regards  homage,  there  seems  to  be  only  one  important  borough 
in  England  whose  burgesses  considered  it  worthy  of  even  repu- 
diation.* 

The  charter  to  the  burgesses  of  Manchester  says  nothing  of 
homage,  but  it  occurs  in  legal  records  of  that  borough,^  though 
not  often;  when  used,  however,  there  is  no  word  of  fealty,  which 
leads  one  to  think  that  it  is  only  another  name  for  that  incident. 
At  Stockport  homage  is  used  in  the  same  way  as  at  Manchester.' 
The  two  places  had  the  same  customs  almost  to  a  word  in  such 
matters  as  arms-relief  or  heriot;  in  Manchester  fealty  is  com- 
monly found,  and  at  times  homage.  At  Stockport  homage  may 
be  the  favorite  term,  but  apparently  in  both  places  it  is  fealty 
alone  that  is  owed.*  There  are  a  few  boroughs,  most  of  which 
are  of  even  less  importance  than  Manchester,  where  homage 
occurs  in  a  few  grants,  not  from  the  lord  of  the  borough  to  a 
burgess,  but  from  one  burgess  to  another,  from  father  to  son,  or 
from  mother  to  daughter.  All  that  the  lord  of  such  a  borough 
ever  asked  was  that  the  grantee  should  pay  his  rent  and  attend  the 
borough  court  as  a  suitor  at  the  proper  periods,  while  all  the  other 
records  of  transfer  in  these  places  contain  nothing  as  to  any  inci- 
dents whatever.  It  seems  that  the  homage  of  these  grants  means 
just  nothing  at  all,  its  intrusion  being  due  to  ignorant  imitation 
of  the  feudal  nomenclature  of  grants  and  releases  of  the  country, 
a  nomenclature  which  the  older  boroughs  did  not  use  as  they  had 
long  before  developed  transfer  formulas  of  their  own.^ 

'  Domesday  de  Gippewyz,  p.  141;  Bacon,  Annalls  of  Ipswiche,  p.  34:  "no 
landholder  of  land  holden  in  this  Towne  by  ffree  Burgage  shall  doe  homage." 

*  Court  Led  Records  of  Manchester,  i,  pp.  42-43. 

'  Heginbotham,  Stockport,  i,  pp.  162-163.  In  the  matter  of  a  tenement  in 
Stockport  the  leet  jurors  said  "  that  T.  B.  .  .  .  is  Burgess  for  one  burgage  .  .  . 
and  he  did  homage  "  on  taking  up  the  tenement. 

*  These  court  leet  Records  are  from  the  latter  half  of  the  sixteenth  century. 
Accuracy  in  the  use  of  feudal  nomenclature  is  not  to  be  expected  therein. 

'  It  may  be  that  the  *  homage  and  service  '  of  these  grants  means  much  the 
same  as  good  will  and  amity.  Du  Cange  treats  '  homage  and  service  '  as  a  villein 
incident  due  the  lord;  it  cannot  mean  that  in  these  cases.  Temp.  Edward  I  a 
burgess  of  Hardness  (Dartmouth)  grants  to  his  son  and  his  son's  wife  "  part  of  his 


THE  INCIDENTS  OF  BURGAGE  TENURE  5 1 

Military  Service 

The  incidents  so  far  considered  are,  in  name  at  least,  closely 
connected  with  feudahsm,  and  with  the  exception  of  homage 
and  fealty  are  only  those  known  as  the  feudal  incidents.^     At 

tenement  "  "  for  his  son's  homage  and  service  "  (H.  M.  C,  Rep.,  5,  p.  601).  Three 
other  contemporary  grants  use  the  same  expression  (ibid.,  pp.  599,  600),  each  of  the 
grantors  being  a  burgess,  as  other  records  show.  There  are  many  other  grants 
in  the  same  borough  but  they  say  nothing  of  homage.  The  lord  was  Gilbert 
Fitz-Stephen,  lord  of  Norton;  all  he  reqiured  in  the  many  grants  which  he  made 
at  this  time  was  rent  and  suit  of  court  (see  ibid.,  pp.  598-599). 

About  1 200  in  Wells  one  burgess  conveyed  his  land  to  another  for  his  '  homage 
and  service  '  (H.  M.  C,  Rep.,  iii,  p.  360).  The  other  grants  in  the  same  borough 
do  not  use  this  form,  and  even  in  the  conveyance  instanced  it  appears  that  the 
grantee's  whole  service  consisted  in  a  payment  of  los. 

In  Leicester  one  biu-gess  released  to  another  "  the  homage  and  service  of  Robert 
the  Leech,  due  for  the  tenements  "  (Bateson,  Records  of  Leicester,  i,  pp.  381-382); 
the  rents  of  the  tenements  are  given  and  the  quit-claim  is  paid  for;  the  whole  thing 
seems  to  be  of  the  same  nature  as  the  verbiage  and  redundancy,  so  impressive  to 
the  ignorant,  of  many  modem  legal  documents.  In  the  same  borough  at  about  the 
same  time  (c.  1250)  a  '  vilen's  daughter  '  released  to  a  burgess  her  right  in  a  piece 
of  land  "  with  homages  .  .  .  accruing  from  the  land"  (z6«/.,  p.  383).  These  releases 
are  mostly  sales,  sometimes  of  the  tenement,  sometimes  of  its  issues. 

At  Durham  one  burgage  is  said  to  be  held  by  homage  and  fealty;  homage  is 
probably  used  to  strengthen  fealty  (see  Hutchinson,  Durham,  ii,  p.  12,  note)  like 
the  '  give,  grant,  and  quit-claim  forever  '  of  burghal  deeds. 

In  the  Waterford  customal  (according  to  Miss  M.  Bateson,  Borough  Customs, 
ii,  p.  84),  was  this  odd  provision:  "if  .  .  .  the  mayor  or  a  citizen  buys  land  in 
fee  to  him  and  his  heirs,  beware  that  his  charter  does  not  say  that  he  is  enfeofifed 
by  homage  and  service,  for  if  he  be  enfeoffed  by  homage  and  service,  wardship  and 
marriage  will  be  due."  Suppose  he  did  not '  beware  '  and  his  charter  (conveyance) 
called  for  homage  and  service.  How  and  by  what  court  could  the  claim  to  ward- 
ship and  marriage  be  enforced  ?  The  charter  to  Waterford,  following  the  Bristol- 
Dublin  customal,  stated  distinctly  the  absence  of  these  incidents;  even  when  a 
citizen  (of  Bristol  or  Dublin)  held  fiefs  in  the  foreign  his  holding  under  a  tenure 
which  knew  neither  incident  protected  him.  That  marriage  and  wardship  often 
were  the  subject  of  private  contracts  is  true  (as  at  Bridport,  temp.  Ed.  I,  a  grantor 
required  "  aid,  counsel,  and  marriage  "  of  the  grantee  —  H.  M.  C,  Rep.,  6,  p.  480) 
but  this  has  nothing  to  do  with  any  tenurial  custom.  In  some  boroughs  such  a 
contract  in  respect  to  a  minor  heir  was  forbidden  (Lyon,  Dover,  i,  p.  xlv)  Private 
contracts,  of  course,  would  be  enforced  by  the  courts,  but  such  a  proceeding  as  the 
above  savors  more  of  fraud  than  mutual  contract.  If  the  clause  should  refer  to 
acquisition  by  a  biurgess  of  land  in  the  foreign  then  it  is  easily  understandable, 
but  why  should  a  customal  intermeddle  in  a  matter  where  the  borough  court  had  no 
jurisdiction  ? 

^  Heriot,  where  found,  is  really  relief;  where  it  consists  of  arms  it  is  in  a  class  by 
itself. 


52  BURGAGE  TENURE  IN  ENGLAND 

a  few  boroughs  in  Ireland  and  Wales  there  were  other  conditions 
infrequently  superimposed  on  rather  than  joined  to  burgage 
tenure  which  gave  it  a  semi-military  aspect.  Thus  at  Limerick 
King  John,  while  giving  burgages,  connected  with  each  a  number 
of  knights'  fees  ^  in  the  foreign,  though  he  did  not  insist  that  the 
connection  should  endure.  When,  however,  the  Earl  of  Lincoln 
founded  Denbigh  in  North  Wales  he  granted  the  burgages  with 
the  distinct  condition  that  each  tenement  should  be  forfeited 
if  it  did  not  maintain  an  armed  man  to  defend  the  walls  of  the 
borough. 2  These  military  features  were,  however,  special  consid- 
erations superadded  to  the  tenure  to  meet  special  conditions, 
which,  when  removed,  and  Welsh  and  Irish  conquest  did  remove 
them,  left  the  tenure  the  same  as  in  any  ordinary  borough.* 

Retrait  F^odal 

It  is  peculiar  that  an  incident  which  all  other  tenures  of  land 
in  England  rejected  *  should  be  found  in  connection  with  the 
boroughs,  whose  tenure  was  freest  of  all.  It  is  difficult  to  account 
for  its  presence  in  the  few  boroughs  where  it  existed,  for  if  due 
to  the  intrusion  of  a  foreign  element  it  should  be  found  where 
there  is  no  trace  of  it,  in  those  little  boroughs  which  had  distinctly 
Norman  customs. 

At  Northampton  when  a  tenement  was  to  be  sold  the  customal 
states  that  the  chief  lord  should  have  the  right  to  purchase  it 
before  any  one  else  if  there  were  no  heirs,  or  if  the  heirs  refused 
to  buy.^     The  customal  goes  on  to  state  that  if  such  a  tenement 

'  Lenihan,  Limerick,  p.  48,  a.  1200.  To  "  G.  one  burgage  below  the  walls  of 
Limerick,"  to  another  burgess  (  ?  knight)  four  burgages,  and  so  on;  in  all  nine 
burgages  to  six  men  and  with  each  burgage  three  to  five  knights'  fees. 

*  Williams,  Denbigh,  pp.  302-309,  a.  1283-90.  The  charter  itself  contained  the 
grant  to  each  burgess  by  name  of  "  one  burgage  in  Denbigh  within  the  walls  .  .  . 
to  have  and  to  hold  to  them,  and  to  their  heirs,  and  to  their  English  assigns  "  on 
condition  that  each  "  shall  find  a  man  armed  in  the  aforesaid  town  of  Denbigh  .  .  . 
to  guard  and  to  defend  the  aforesaid  town  for  each  burgage." 

'  As  stated  before  all  the  Anglo-Norman  boroughs  of  Ireland  were  more  or  less 
of  the  nature  of  garrisons. 

*  Pollock  and  Maitland,  History  of  English  Law,  i,  p.  648. 

*  Markham,  Liber  Custumarum,  p.  18:  The  next  of  kin  "  shall  be  moste  nexte 
to  aske  the  cate  [purchase]  than  any  man  ellis,  or  the  chefe  lorde  if  ther  be  no 


THE  INCIDENTS  OF  BURGAGE  TENURE  53 

is  sold,  the  lord  not  being  given  a  chance  to  buy,  he  may  come 
to  court  within  the  first  four  pleas  (probably  four  weeks  at  North- 
ampton) after  the  sale,  give  the  buyer  what  he  paid,  and  take 
the  tenement.  If  the  sale  were  made  out  of  court  so  that  the 
lord  knew  nothing  of  it,  he  should  have  a  chance  to  recover  the 
tenement  as  soon  as  the  sale  was  shown,  while  to  avoid  fraud 
both  buyer  and  seller  must  take  oath  that  the  price  for  which  the 
messuage  is  said  to  be  sold  was  that  really  paid.  The  chief 
lord  had  no  negative  voice  on  a  sale  which  was  said  to  be  made 
imder  the  stress  of  poverty;  ^  the  excuse  of  poverty  was  often 
used.  The  limit  of  time  within  which  a  lord  might  exercise  his 
right  of  preemption  was  a  year  and  a  day,  and  the  year  and  day 
began  to  run  only  from  the  time  when  the  lord  came  of  age,  if  a 
minor,  or  got  back  to  England,  if  a  traveller,  or  out  of  jail,  if 
a  prisoner.2 

This  incident  is  found  in  a  modified  form  at  Norwich,  where, 
however,  it  apphed  only  to  special  cases  of  devised  tenements,' 
and  was  consequently  about  as  feeble  a  right  of  retrait  as  can  be 
thought  of.  In  brief  it  was  this:  the  lord  had  a  right  (after  the 
kin)  before  others  to  purchase  a  tenement  which  must  be  sold 
anyway  under  the  terms  of  a  last  will.*  It  is  possible  that  the 
lord's  retrait  may  have  existed  in  Gloucester,  but  the  evidence 
therefor  is  shght,  and  instead  of  proving  the  presence  of  retrait 
feodal  goes  rather  to  show  a  burgess's  fear  of  his  wife  and  his 

man  of  the  lynage.  And  if  the  chefe  lorde  take  the  sales  [i.  e.,  alienation  fee]  be 
he  forbarred  of  the  cate." 

1  Ibid.,  p.  19 :  if  one  is  compelled  by  poverty  to  part  with  his  tenement "  the  chefe 
lorde  shall  not  in  no  maner  wise  letten  [i.  e.,  prevent]." 

2  See  Markham,  Liber  Ctiskimarum,  pp.  17-19  for  the  custom.  Be  it  noted 
that  he  who  had  the  right  of  preemption  was  the  chief  lord. 

^  Hudson  and  Tingey,  Records  of  Norwich,  i,  pp.  156-157,  159-160:  "  Also  if  it 
happen  that  such  a  devisee  decease  without  issue,"  the  reference  being  to  an  en- 
tailed estate,  issue  failing,  "  let  the  tenement  thus  devised  ...  be  delivered  to  the 
next  heir  of  the  testator  ...  for  a  certain  price.  .  .  .  And  if  he  refuse  let  it  be 
offered  ...  to  the  lord  of  the  fee  "  before  being  sold.  Testator  and  chief  lord 
are  not  one  and  the  same  person. 

*  This  is  rather  the  ghost  of  retrait  feodal  than  its  living  substance.  Possibly 
the  lord's  right  of  preemption  had  once  been  of  more  efifect  in  Norwich. 


54  BURGAGE  TENURE  IN  ENGLAND 

lord  the  abbot.^  At  Whitby,*  Exeter,'  and  Walsall*  there  is 
no  doubt  of  the  reality  of  retrailjeodal.  The  incident  at  Whitby  ' 
was  due  the  lord  of  the  borough,  elsewhere  it  was  the  right  of 
the  chief  lord,  who  in  such  a  borough  as  Northampton,  the  only 
place  of  importance  where  its  existence  is  certain,  was  most 
likely  to  be  a  fellow-burgess.  Even  in  Northampton  it  is  unlike- 
ly that  the  lord's  right  was  often  exercised;  it  came  after  the  kin's 
right  to  preemption  and  was  barred  by  the  lord's  taking  an  alien- 
ation fee,®  the  latter  an  incident  whose  incidence  is  far  wider 
than  the  custom,  for  which  it  may  at  one  time  have  been  a  com- 
mutation. 

Alienation  Fees 

The  usual  name  for  such  fees,  which  were  paid  to  the  lord  in 
a  few  boroughs,'  was  'sellings.'    At  Northampton  this  fee  was 

*  Stevenson,  Records  of  the  Corporation  of  Gloucester,  p.  73:  "  Grant  from  .  .  . 
with  the  assent  of  his  wife  and  the  consent  of  his  son  .  .  .  and  of  Thomas  Carbunel 
Abbot  of  Gloucester,  his  lord,  .  .  .  of  a  messuage."  If  this  were  a  constant  or  even 
a  frequently  recurring  condition  in  grants  at  Gloucester  it  would,  of  course,  prove 
the  existence  of  the  lord's  retrait.  It  seems  however  to  be  found  in  this  conveyance 
alone.     See  ibid.,  pp.  70,  72,  82. 

*  Atkinson,  Whitby,  p.  284  {cir.  a.  1185):  "  si  quis  autem  terram  suam  vendere 
voluerit,  primitus  hoc  abbati  ostendere  debet,  et  ei  terram,  si  earn  emere  voluerit, 
vendendam  oflcre  pro  tali  rationabili  pretio  quale  alius  ei  pro  eadem  terra  dare 
voluerit.    Si  vcro  eam  emere  noluerit,  consilio  et  consensu  ejus  eandem  vendat." 

'  Bateson,  Borough  Customs,  ii,  p.  61 :  "  If  one  man  holds  a  tenement  of  another 
by  service,  he  may  sell  it,  saving  the  lord's  right,  and  if  he  sells  it  unconditionally 
...  by  law  the  lord  has  a  better  right  than  another  [to  buy  it]."  Miss  Bateson 
gives  the  same  custom  for  the  '  borough  '  of  Tettenhall  Regis,  but  it  is  doubtful 
if  the  place  were  ever  a  borough  (see  Samuel  Lewis,  A  Topographical  Dictionary  of 
England,  7th  ed.,  1848,  iv,  p.  317). 

At  half-burghal,  half-manorial  Kingsthorpe  the  '  franche  men  of  the  town  ' 
might  exercise  retrait  when  land  was  sold  to  a  non-resident  (Cilover,  Kingsthorpiana, 
p.  xl). 

*  Charier  of  Walsall,  a.  1198-1216:  Et  siilvo  mihi  ct  heredibus  meis  quod  si  quis 
dictorum  burgensium  burgagia  sua  vendere  voluerit  monstrabit  nobis  vol  ballivo 
nostro,  Et  si  sit  ad  opus  nostrum  habebimus  dicta  burgagia  de  duodecim  denariis 
minus  quam  aliquis  alius. 

For  this  section  of  the  Walsall  charter  I  am  indebted  to  Mr.  Adolphus  Ballard, 
author  of  Domesday  Boroughs,  etc.,  who  courteously  communicated  it  to  mc  in 
advance  of  the  publication  of  his  British  Borough  Charters,  1042-1216  (1913). 

'  Possibly  at  Exeter  also.  '  See  Markham,  Liber  Custumarum,  p.  18. 

^  Alienation  fees  as  paid  to  the  borough  will  be  considered  under  '  Mobility'; 
see  p.  128. 


THE  INCIDENTS  OF  BURGAGE  TENURE  55 

due  the  chief  lord  at  the  sale  of  a  messuage;  *  the  customal,  how- 
ever, does  not  state  the  amount.  In  the  boroughs  where  it  existed 
it  was  commonly  a  small  fixed  sum.  At  Preston  ^  this  fee  must 
be  paid  by  him  who  sold  a  tenement,  though  only  when  he  had 
but  one.  It  is  possible  that  this  remission  of  the  fee  to  a  holder 
of  more  than  one  tenement  was  because  he  was  stiU  a  house- 
holder and  was  therefore  unlikely  to  become  an  emigrant,  though 
it  would  seem  that  4d.  would  not  be  a  material  obstacle  to  his 
leaving. 

At  Whitby  one  who  bought  a  tenement  paid  a  fee,  probably 
to  the  abbot,  lord  of  the  borough,  and  a  small  contribution  for 
beer  as  well;  ^  at  Tewkesbury  *  a  fee  must  be  paid  by  incoming 
buyers  of  messuages.^  At  Manchester,  Stockport,  and  Salford 
fixed  alienation  fees  were  customary,^  and  must  be  paid  in  the 
two  latter  towns  not  only  when  a  tenement  was  sold  but  also 
when  it  was  devised.'     At  Bury  Saint  Edmunds  an  aliena- 

^  Markham,  Liber  Custumarum,  p.  18:  "if  the  chefe  lorde  take  the  sales." 
^  Hardwick,  Preston,  p.  260;  Fishwick,  Preston,  p.  16:  "  when  it  [i.  e.,  a  tene- 
ment] shall  be  sold  and  he  [i.  e.,  the  seller]  hath  not  another  burgage,  when  the  other 
shall  be  seized  he  shall  give  4d.  from  the  issue,  but  if  he  hath  another  burgage  he 
shall  give  nothing." 

^  Atkinson,  Whitby,  p.  284:  "  emptor  vero  terrae  consuetudinem  ad  saisinam 
iv  denarios  dabit,  et  i  denarium  burgensibus  ad  beverage." 

*  At  Tewkesbury  and  Cardiff  one  was  allowed  to  take  up  an  inherited  tenement 
"  without  having  to  give  notice  to  the  bailifif  or  prevost."  See  Matthews,  Cardiff 
Records,  i,  p.  12. 

5  Bennett,  Tewkesbury,  pp.  323-324.  When  a  non-burgess  bought  a  tenement 
he  must  come  to  the  next  court  and  pay  a  fine. 

*  Tait,  Mediaeval  Manchester,  p.  66;  Whitaker,  Manchester,  p.  585.  At  Salford 
"  quicunque  burgagium  suum  vendere  voluerit  .  .  .  et  a  villa  discedere,  dabit 
mihi  4d.  et  libere  ibit  quocumque  voluerit."  At  first  sight  the  fee  of  4d.  seems  to  be 
a  payment  for  permission  to  leave  the  town,  for  vendere  and  discedere  stand,  as  it 
were,  opposed  to  dabit  and  ibit,  while  the  Preston  practice  of  excusing  the  seller  from 
payment  when  he  had  another  burgage,  and  therefore  could  not  go,  certainly  does 
not  weaken  this  view.  There  is  probably  nothing  in  it,  however.  When  these 
towns  were  chartered  in  the  latter  part  of  the  thirteenth  century  4d.  would  be  a 
small  restriction  on  going  or  staying.     It  was  only  a  custom  of  Breteuil. 

^  Tait,  Mediaeval  Manchester,  p.  67.  Bequest  was  lawful  at  these  places  only 
when  a  burgess  had  no  heir.  He  might  then  devise  his  messuage  "  Salvo  tamen 
jure  meo,  scilicet  quatuor  denarios."  The  saving  clause  is  not  found  in  the  Man- 
chester charter.  Professor  Tait  {ibid.,  p.  69)  suggests  that  it  may  be  covered  by  the 
servicium  salvum  of  that  grant,  but  this  is  carried  out  in  the  Stockport  charter  and  is  ' 
a  prohibition  of  devise  in  mortmain:  "  salvo  servicio  ad  ipsum  burgagium  pertinere. 


56  BURGAGE  TENURE  IN  ENGLAND 

tion  fee  was  due  when  a  few  of  the  messuages  changed  hands, 
being  payable  only  from  '  tenements  of  hadgovel ' ;  that  is,  from 
original  tenements.^  This  fee  was  customary  at  Leeds,^  Ponte- 
fract,'  where  it  was  exacted  from  both  buyer  and  seller,  and 
Maldon  *  where  the  fee  took  the  modern  aspect  of  a  percentage 
of  the  price. 

There  are  other  boroughs  where  alienation  fees  existed  though 
they  did  not  go  to  a  lord,  and  still  others  where  the  customs,  if 
ever  known,  had  been  forgotten  or  had  become  a  fee  accompany- 
ing seisin.  .  For  instance  at  Hereford  in  1086  one  might  sell  his 
house  if  he  wished  to  leave  the  city,  the  third  penny  being  the 
baiUff's,^  but  when  the  customal  was  drawn  up  in  1280-81,  sell- 
ings as  such  had  disappeared.' 

ita  sc.  quod  illud  burgagium  non  alienetur  in  religiosa."  This  clause  occurs  in  each 
of  the  three  charters  in  regard  to  sale  of  tenements.  It  seems  that  if  one  should 
take  the  charter  as  it  stands  the  conclusion  must  be  that  at  Manchester  he  who 
acquired  a  tenement  by  will  paid  no  sellings.  It  is  a  trivial  matter  anyway;  devise 
was  very  rare  at  Manchester. 

^  Arnold,  Memorials  of  St.  Edmund's  Abbey,  iii,  p.  307:  "  every  one  who  pur- 
chases a  tenement  of  Hadgovel  shall  not  owe  the  Abbot  for  entry  into  the  said 
tenement  more  than  20  sous  and  one  purse  of  id.  lob.  and  shall  be  quit  of  tax  .  .  . 
and  of  every  kind  of  purchase,  without  paying  anything  for  entry  into  the  tene- 
ments of  that  fee,  by  the  payment  of  the  first  20  sous."  The  original  messuage 
seems  to  have  been  regarded  as  a  head  tenement  or  capital  messuage.  This  is 
from  the  unconfirmed  charter  of  1327,  but  the  townsmen  were  not  likely  to  demand 
that  sellings  be  taken,  though  they  may  have  been  trying  to  curtail  them.  Town 
government  however  and  not  tenure  was  in  dispute. 

'  Wardell,  Leeds,  app.,  p.  iv. 

'  H.  M.  C,  Rep.,  8,  p.  269:  a  seller  of  land  "  dabit  unum  denarium  de  theloneo, 
et  pretor  (  ?  praepositus]  dabit  terram  eraptori,  .  .  .  et  emptor  dabit  similiter  unum 
denarium." 

*  C.  P.  R.,  a.  1403,  p.  308.  When  the  bishop  of  London  sold  his  customs  in 
Maldon  to  his  men  of  Maldon  among  them  was  one  called  "  Landchepe,  viz.,  taking 
from  each  man  or  woman  purchasing  land  within  the  town  lod.  on  each  mark  of 
purchase,"  6J%,     This  sort  of  fee  was  taken  by  certain  boroughs. 

»  D.  B.,  i,  f.  179a. 

'  In  a  few  boroughs  the  customal  guarded  against  a  lord's  taking  an  alienation 
fee,  as  at  Castle  Rising,  where  the  burgesses  may  "  sell  .  .  .  their  burgages  to  whom 
they  will  without  any  gainsaying,"  etc.  (Parkin,  Lynn,  p.  205);  and  at  Bakewell, 
where  they  may  "  sell  .  .  .  their  burgages  ...  to  whom  they  will  .  .  .  without 
the  leave  of  himself,"  j.  e.,  the  lord  (H.  M.  C,  Duke  of  Rutland,  iv,  p.  41,  a.  1286). 


THE  INCIDENTS  OF  BURGAGE  TENURE  57 

Inpenny  ai^  Outpenny 

In  some  cases  this  is  only  '  sellings '  under  another  name,  in 
others  it  is  additional  thereto,  but  as  those  who  got  and  those 
who  paid  called  it  an  entrance  or  a  departure  fee  it  seems  as 
well  to  retain  the  name.^  In  Wake's  charter  to  Chesterfield  ^ 
this  fee  was  saved  to  the  lord  of  the  borough.  The  theoretical 
difference  between  this  fee  and  sellings  seems  to  be  that  the  latter 
commonly  apphed  to  any  sale  of  property,  this  custom  only  to 
sales  made  to  foreigners,  but  the  amount,  4d.,  reminds  one  of 
Manchester  and  places  of  that  sort.  The  distinction  is  apparent 
at  Preston,^  where  both  fees  existed  side  by  side.  At  Shaftesbury 
in  7  Henry  VI  an  entrance  fee  was  paid  to  the  abbess,  to  whom 
(hardly  the  same  abbess)  the  farm  had  been  granted  in  1283.'* 

These  alienation  fees  as  paid  to  a  lord  are  fixed  ^  and  very 
small,  and  appear  at  only  a  few  boroughs,  most  of  which,  North- 
ampton excepted,  are  baronial,  created,  and  of  Kttle  or  no  size 
or  importance.  At  Northampton  the  chief  lord  is  their  receiver, 
elsewhere  such  fees  are  undoubtedly  the  perquisite  of  the  lord 
of  the  borough.  Apparently  they  are  the  result  of  imitation  of 
some  typical  burghal  custom,  very  probably  that  of  Breteuil. 

1  Only  as  paid  to  a  lord  will  it  be  dealt  with  here.  This  fee  is  due  to  boroughs 
also. 

*  Yeatman,  Records  of  Chesterfield,  p.  39,  22  Ed.  I:  "  the  other  children  "  (than 
eldest  sons)  when  "  each  one  shall  acquire  to  himself  a  Burgess  part  .  .  .  shall, 
upon  entering  upon  it,  give  me  and  my  heirs  4d."  And  again  {ibid.,^.^o)  "  no 
stranger  shall  purchase  a  burgage  or  have  seisin  before  that  they  [sic]  satisfy  myself 
or  my  heirs  or  my  bailiffs  ";  the  two  sorts  of  fees,  in  one  sense. 

'  Hardwick,  Preston,  p.  259:  "  If  any  one  wish  to  be  made  a  burgess,  he  shall 
come  into  court  and  give  to  the  mayor  izd.,  and  shall  take  his  burgage  from  the 
mayor."  The  inpenny  went  to  the  borough  in  this  case,  the  sellings  to  the  borough 
lord. 

*  Mayo,  Records  of  Shaftesbury,  p.  23.  At  the  court  leet  a  fine  of  4d.  was  made 
"  for  entering  upon  axottage."  The  fee  was  not  always  4d.;  in  the  same  year  a 
capon  was  paid  as  a  fine  for  entrance  upon  "  three  roods  of  pastureland  "  (ibid., 
P-  23). 

As  an  illustration  of  the  desire  to  prevent  burgesses  from  leaving  a  borough, 
in  1274  the  justiciary  of  Ireland  granted  burgages  "pertaining  to  the  king"  in 
Rendon  on  condition  that  the  grantees  shall  "  dwell  there,  and  do  not  withdraw 
from  the  king's  fealty  "  (C.  P.  R.,  a.  1274,  p.  57).  At  Dunheved  no  burgess  might 
depart  from  his  worst  holdings  and  keep  his  best  (Peter,  Launceston,  p.  174). 

^  4d.  as  a  rule;  at  Maldon,  a  borough  with  different  customs,  6j%. 


58  BURGAGE  TENURE  IN  ENGLAND 

At  Northampton  the  lord  of  the  borough,  the  king  in  this  case, 
would  be  entitled  to  his  fee  only  when  a  tenement  was  sold  which 
was  held  directly  of  him;  in  most  cases  this  would  be  merely  the 
fragment  which  represented  an  original  messuage.  The  chief 
lord,  who  got  the  sellings,  was  most  likely  to  be  a  burgess.  As 
to  an  entrance  fee,  that,  where  it  existed,  was  apt  to  become  a 
perquisite  of  the  bailiff  or  town-clerk  for  witnessing  the  seisin  and 
enrolling  the  deed.^ 

Suit  of  Court 

At  a  few  small  boroughs  the  burgesses  owed  suit  at  the  lord's 
court  as  an  incident  of  the  tenure.  The  charter  to  the  men  of 
Bideford  provided  for  suit  at  the  baron's  court,^  and  at  Dart- 
mouth, where  the  lord  of  Norton  made  his  borough  as  it  were 
piecemeal,  his  separate  grants  of  burgages  required  attendance 
at  his  court.'  Suit  of  court  is  owed  at  Inchcoyn,*  Durham,^ 
Manchester,^  Doncaster,'  Charmouth,^  East  Grinstead,^  and 
Stockport.^"  This  suit  of  court  is  distinctly  intrinsec  and  not 
forinsec  service;  it  is  obtained  by  contract  and  is  not  an  obli-. 
gation  of  the  tenure.     The  same  is  true  of  military  service," 

'  This  is  not  to  be  taken  as  impljnng  that  fees  for  recording  deeds  sprang  from 
alienation  fees. 

^  Watkins,  Bideford,  p.  13,  probably  temp.  Henry  III. 

'  H.  M.  C,  Rep.,  V,  p.  599.  See  ibid.,  pp.  598-601 :  "  such  suits  of  court  as  the 
other  freemen  make."  These  were  two  suits  a  year.  Most  of  the  grants  are  temp. 
Henry  HI  and  Edward  I. 

*  Caulfield,  Youghal,  p.  xxxv,  a.  1288:  "  The  burgesses  of  Inchicoyn  hold  three 
car.  of  land  in  their  borough  tenures  at  New  Town,  at  £11  14s.  yearly,  and  suit  at 
their  Hundred." 

*  Hutchinson,  Durham,  ii,  p.  12,  note.  Three  suits  a  year  are  required;  the 
court  may  have  been  the  portmanmote  and  not  the  lord's  court. 

*  Court  Leet  Records  of  Manchester,  i,  p.  204  (i6th  century). 
'  Hardy,  Records  of  Doncaster,  ii,  p.  20,  0.  1506. 

'  C.  I.  M .,  Henry  \TI,  i,  p.  141,  3  Henry  VTI:  "  three  burgages  in  Charncmouth 
.  .  .  held  of  the  Abbot  of  Ford  ...  by  2s.  yearly  rent  and  suit  of  court  .  .  . 
twice  yearly." 

'  Hills,  East  Grinslead,  p.  10  (Sussex).  In  1559  there  were  48  burgages  and  24 
cottages;   the  burgesses  held  by  "  fealty  only  and  suit  of  court." 

'"  Heginbotham,  Stockport,  i,  p.  163,  a.  1641 :  "  suite  and  service  "  are  demanded 
from  the  buyer  of  a  tenement.  If  Middlewich  in  Cheshire  were  a  borough  in  the 
middle  ages  (it  is  not  today)  it  should  be  added  to  those  named  above. 

"  See  p.  5 1 . 


THE  INCIDENTS  OF  BURGAGE  TENURE  59 

and    of  gtte,  which  was  owed  by  at  least  one   tenement   at 
Liverpool.^ 

A  few  boroughs  became  their  own  lords  during  the  middle 
ages  by  buying  out  or  paying  a  lump  sum  for  their  fee-farm  rents.^ 
In  8  Henry  VII  messuages  in  Bristol  are  "  held  of  the  Mayor  and 
Commonalty  of  Bristol  in  free  burgage  as  all  Bristol  is  held,"  ^ 
and  in  such  a  case  even  the  name  of  a  personal  lord  vanished  from 
the  tenure. 

Summary 

At  this  point  a  brief  recapitulation  of  the  principal  boroughs 
in  which  the  tenure  was  affected  by  incidents  with  feudal  or 
villein  prototypes  or  antitypes  may  be  not  amiss.  Following 
the  order  in  which  the  subject  has  been  treated  in  this  chapter, 
it  appears  that  of  the  three  aids  only  two,  those  taken  at  knight- 
ing and  marrying,  were  known,  and  these  at  but  one  unimportant 
borough  —  Castle  Rising.  Marriage  had  no  place  anywhere, 
and  feudal  wardship  did  not  exist.  ReKef  however  was  owed  at 
several  boroughs,  the  most  important  of  which  are  North- 
ampton and  Leicester;  the  other  towns  where  it  was  an  incident, 
as  Manchester  and  Denbigh,  are  mostly  created  boroughs,  and 
many  of  them  show  foreign  influence  in  their  customs.  Heriot 
was  confined  to  the  same  group  of  created  boroughs  and  was 
never  a  best  chattel,  but  was  rather  of  the  nature  of  the  heriot 
of  Canute's  law. 

Fealty  in  the  feudal  sense,  and  homage,  which  as  used  seems  to 
have  been  only  another  name  for  fealty,  are  found  only  at  Man- 
chester and  two  other  httle  boroughs  of  Hke  sort.  In  a  few 
garrison  boroughs,  as  Limerick  and  Denbigh,  a  small  amount 
of  mihtary  service  must  be  done.  That  stranger  or  outcast, 
retrait  feodal,  appeared  in  Exeter,  Northampton,  Norwich  (in 
narrow  limits),  and  Whitby.     In  the  first  borough  and  the  last 

^  Picton,  Liverpool  Records,  i,  p.  12,  a.  1346.  There  was  one  messuage  which 
finds  "  a  stable  for  twelve  horses  at  each  arrival  of  the  Lord  within  the  said 
borough,"  an  impossible  condition  with  an  ordinary  town  tenement. 

2  In  the  modem  period  most  of  the  larger  boroughs  bought  their  fee-farm  rents. 
For  instance,  in  the  17th  century  the  Liverpool  corporation  became  "  lords  of  the 
manor  "  by  purchase  (Picton,  Liverpool  Records,  i,  p.  582). 

3  C.  /.  M.,  Henry  VII,  i,  p.  327. 


6o  BURGAGE  TENURE  IN  ENGLAND 

it  was  probably  due  to  a  foreign  founder,  in  the  others  to  foreign 
immigration. 

A  few  incidents  common  to  both  feudalism  and  villeinage 
were  more  wide-spread,  but,  like  relief  and  heriot,  alienation 
and  entrance  fees  (as  paid  to  a  lord)  were  known,  with  few  excep- 
tions, of  which  Northampton  is  the  chief,  only  in  the  same  group 
of  created  baronial  boroughs.  Suit  at  the  lord's  court  was  an 
intrinsec  incident  of  the  tenure  at  a  few  small  baronial  boroughs 
in  Ireland,  the  southwest  of  England,  and  between  Ouse  and 
Trent. 

With  the  exception  of  Northampton  the  tenure  in  the  impor- 
tant boroughs,  practically  all  of  which  are  royal  boroughs,  had 
no  lordly  incidents  whatever,  feudal  or  villein,  with  the  exception 
of  fealty.  This,  however,  was  neither  villein  nor  feudal  in  the 
true  sense,  but  was  merely  an  oath  to  be  faithful  to  the  borough 
and  its  lord,  and  soon  became  a  personal  rather  than  a  tenurial 
obligation. 


CHAPTER  II 

BURGAGE  RENTS 

The  term  burgage  rent  is  here  used  to  mean  the  rent  of  assize, 
fixed,  or  fee-farm  rent  which  each  messuage  or  burgage  ^  must 
pay  to  the  lord  of  the  borough,  and  which  endured  while  enough  of 
the  tenement  remained  to  be  recognizable.  It  might  be  divided 
as  the  messuage  was  divided  or  might  remain  as  a  perpetual  rent 
on  that  part  from  which  aHenations  had  been  made.  Both 
methods  are  found  in  operation  in  the  later  middle  ages.^  This 
burgage  rent  varied  greatly  in  amount,  even  in  the  same  town. 
In  the  older  boroughs  it  was  often  id.;  in  many  of  the  boroughs 
created  by  charter  it  was  a  uniform  rent  of  i2d.;  in  one  of  these, 
Agardsley,  it  was  i8d.  Whatever  the  sums,  they  seem  very  low 
at  any  period  when  compared  with  the  renting  values  of  the 
tenements,  while  time  soon  made  a  shilHng  rent  look  very  small 
and  a  penny  rent  a  mere  symbol.  In  fact  that  is  just  what  these 
penny  rents,  the  rents  of  the  messuages  in  many  of  the  older 
boroughs,  seem  to  have  been  at  any  time  —  mere  symbols  of  lord- 
ship. In  such  places  this  rent  was  the  only  tie  between  lord  and 
land,  fealty  the  only  bond  between  lord  and  man.  Does  this 
not  seem  to  have  originated  as  a  mutual  arrangement  between 
man  and  man  to  produce  lordship  and  vassalage  ? 

The  main  theme  of  this  chapter  will  be  these  burgage  rents, 
their  amounts  and  form,  with  illustrative  tables  to  facilitate 
comparison  between  the  original  rents  and  the  selKng  and  renting 
values  of  the  messuages,  as  well  as  other  conditions  thereto 
relating.      Before  these  matters   are   taken  up,    the  details  of 

^  Except  in  the  founded  boroughs  the  former  was  the  term  for  an  urban  tenement 
in  mediaeval  England;  *  burgage  '  referred  to  the  tenure. 

*  With  the  close  of  the  mediaeval  period  original  or  quit-rents  had  begun  to 
drop  away  as  they  were  not  worth  collecting,  in  many  cases  because  the  tenements 
which  owed  them  had  disappeared.     A  few  of  these  rents  remain  to  the  present  day. 

6i 


62  BURGAGE  TENURE  IN  ENGLAND 

burghal  nomenclature  need  mention  and  definition.  When  a 
borough  owed  its  origin  to  a  charter,  the  usual  formula  thereof 
was  "  so  many  pence  from  each  burgage  or  messuage,"  and  no 
name  but  rent  or  rental  appeared.  Other  names  were  in  vogue, 
however,  which  had  their  origin  in  the  older  boroughs:  gavel  or 
gable,  landgable,  hawgable,  housegable,  and  many  variants  of 
these. 

Landgable  and  Hawgable 

Gable  alone  was  sometimes  used  for  the  burgage  rent.  At 
Scarborough  it  seems  to  be  the  only  name  for  the  fixed  rent;  * 
it  was  used  also  at  WaUingford  ^  in  the  twelfth  century  and  at 
Chester  ^  from  the  eleventh  to  the  sixteenth  and  probably  later 
centuries. 

As,  however,  '  gable  '  was  occasionally  used  with  other  mean- 
ings, the  fixed  rent  on  land  or  houses,  or  both,  was  commonly 
called  hawgable  or  landgable.  The  late  Professor  Maitland  was 
of  the  opinion  that  hawgable  was  paid  for  the  houses,  and  land- 
gable for  the  arable  strips  in  the  common  fields.^  This  may  have 
been  the  case  at  an  early  date,  possibly  in  other  places  than 
Cambridge,  whose  local  usage  was  the  cause  of  the  great  scholar's 
suggestion;   though  in  nearly  every  borough  the  distinction  was 

*  See  Brown,  Yorkshire  Inquisition,  i,  pp.  22,  164,  and  iii,  pp.  91-93:  a.  1250, 
3  Ed.  I,  a.  1298. 

*  Cir.  1 156  Henry  II  remitted  his  gable  to  the  burgesses,  .  .  .  "  de  annuo 
Gablio  meo,  quod  solebant  reddere  de  Burgo  WaUingford,  de  eo,  scilicet,  quod  ad 
me  pertinet  in  Burgo  "  (Hedges,  WaUingford,  i,  p.  271);  gablium  almost  certainly 
refers  to  the  burgage  rent.  The  last  clause  seems  to  be  to  save  the  interests  of 
other  lords  than  the  king. 

When  in  1253  Simon  de  Montfort  remitted  'bridge-silver  and  gavel -fMjnce ' 
to  his  burgesses  of  Leicester,  the  latter  are  probably  the  fixed  rents;  they  amounted 
to  only  s6s.  8d.,  and  were  unequal,  a  condition  to  be  expected.  (See  Thompson, 
Leicester,  p.  70.) 

At  Famham,  however,  in  the  thirteenth  century  "  G.  et  H.  et  R.  praepositus 
reddunt  compotum  .  .  .  de  toto  gabulo  assiso  de  Huppel[anda]  (upland)  .  .  . 
et  .  .  .  vii  1.  de  firma  burgi "  (Hall,  Pipe  Roll  of  the  Bishopric  of  Winchester,  1208-09, 
p.  37).  The  term  in  this  case  certainly  does  not  refer  to  the  burgage  rents,  which 
would  be  contained  in  the  farm. 

»  D.  B.,  i,  f.  262b;  H.  M.  C,  Rep.,  8,  p.  362:  "  Hereafter  foloith  the  Gabul 
Rentes  ";  from  the  Assembly  Book,  a.  1533. 

*  Township  and  Borough,  p.  70. 


BURGAGE  RENTS  63 

lost  before  the  *  Great  Inquiry,'  ^  and  even  in  Cambridge  it  was 
not  always  adhered  to,^  the  term  sometimes  being  applied  there 
to  the  rent  of  land  alone,^  while  in  many  boroughs  it  was  unknown 
at  any  period  of  our  subject.  The  Hundred  Rolls  specify  about 
two  hundred  houses  as  liable  to  hawgable,  the  amount  of 
which  in  the  fifteenth  century  was  £7  2s.  f d.*  By  this  date  the 
hawgable  had  become  a  '  high  gable,'  thought  to  have  something 
to  do  with  the  gables  of  houses.  A  few  high  gable  rents  were 
paid  the  Cambridge  corporation  as  late  as  1853,  and  may  be  even 
today.  ^ 

The  term  hawgable  was  used  in  other  boroughs  than  Cambridge, 
not,  however,  side  by  side  with  '  landgable,'  but  to  its  exclusion. 
Such  was  the  usage  at  Denbigh  in  North  Wales,^  York  with 

^  R.  H.,  ii,  pp.  356  et  seq.  (Cambridgeshire  Inquest). 

2  The  Hundred  Rolls  are  very  full  for  both  Cambridge  and  the  shire,  and  contain 
many  items  concerning  the  messuages  in  the  borough,  the  following  quotation  being 
characteristic  and  illustrative  of  our  subject:  "  juratores  illius  burgi  dicunt  quod  B. 
B.  tenuit  quoddam  tenementum  in  villa  de  Cantabrigia,  et  solebat  reddere  praedicto 
tenemento  ballivis  .  .  .  xiiij°''  sol.  et  viij  d.  nomine  hagabule  "  (R.  H.,  i,  p.  55). 
This  record,  much  abbreviated,  shows  the  use  of  hawgable  and  also  a  possible 
ambiguity  in  respect  to  this  one  case,  for  14s.  8d.  is  very  high  where  the  average 
rent  was  id.  a  tenement.  The  chief  lord  was  the  borough,  the  holder  a  religiosus 
who  had  paid  no  rent  for  ten  years;  possibly  hawgable  and  rent  were  confused, 
though  not  probably,  for  the  two  are  carefully  separated  as  a  rule  (see  R.  H.,  ii, 

P-  327)- 

'  R.  H.,  ii,  p.  358:  "  tres  acras  terrae  ...  ad  hagabulum."  This  entry 
(R.  H.,  ii,  p.  358)  seems  to  be  the  only  one  to  fall  into  error.  The  usual  record 
discriminates:  "  Scolares  de  Merton  tenent  unum  messuagium  cum  quadraginta 
et  quinque  acris  terrae  et  quinquaginta  sol.  aimui  redditus  in  villa  et  in  campo 
Cantabrigiae  ...  ad  hagabvilum  et  langabulum  iiij  s.  et  x  d."  {R.  H.,  ii,  p.  360. 
For  other  records  of  the  same  sort  see  ibid.,  pp.  360,  361,  370). 

*  Cooper,  Cambridge,  i,  p.  228,  o.  1483;  £7  is.  3id.  to  use  Cooper's  figures, 
about  the  same  as  in  the  Domesday  era  when  it  was  £7  2  orae  2d.  {ibid.,  i,  p.  18; 
D.  B.,  i,  f.  189a).  For  this  subject  see  Maitland,  Township  and  Borough,  p.  70. 
Domesday  calls  nearly  every  burgage  rent,  at  Cambridge  and  elsewhere,  gabulum 
or  langabulum. 

*  In  the  list  of  high  gable  rents  in  1483  (Cooper,  Cambridge,  i,  p.  18),  the  amounts 
run  from  ^d.  to  15s.  for  single  tenements,  but  the  last  had  '  lands '  connected 
with  it. 

8  Williams,  Denbigh,  p.  306:  "each  of  the  burgesses  .  .  .  shall  render  .  .  . 
yearly  id.  .  .  .  on  account  of  housegable  for  each  of  the  burgages."  From 
charter  of  1283-90. 


64  BURGAGE  TENURE  IN  ENGLAND 

Bootham  and  other  suburbs,'  and  Bury  Saint  Edmunds,*  where, 
however,  the  payment  was  remitted  to  him  and  his  heirs  who 
bestowed  a  tenement  in  frank  almoin.'  Hawgable  was  in  use 
also  in  Ipswich,*  Maldon  in  Essex,^  Bedford,"  and  Hertford.' 
It  is  noteworthy  that  hawgable  is  confined  to  the  older  boroughs 
of  the  Danelaw.*  Denbigh  in  North  Wales  is  an  apparent 
exception.  Denbigh  was,  however,  a  created  borough,  and  its 
founder  was  a  de  Lacy,  whose  name  is  Danish  and  whose  fellow 
Lincolnshire  men  probably  took  the  name  with  them  to  the 
Welsh  marches  from  their  east  English  home. 

Landgable,  the  commonest  name  for  the  burgage  rent,  was  used 
in  almost  all  the  rest  of  the  older  English  boroughs,  and  in  these 
it  was  not  applied  to  land  in  the  common  fields,  as  it  was  at 
Cambridge,  whether  such  lands  were  or  were  not  connected  with 
particular  tenements.      Domesday  constantly  uses  landgable, 

*  Widdrington,  Analecta  Eboracensia,  p.  121:  tenements  were  '  held  of  the  king 
by  housegable,'  a.  1286-90.  A  charter  of  Henry  II,  granting  lands  to  St.  Peter's, 
uses  the  same  name:  "  et  eisdem  terris  .  .  .  do  .  .  .  consuetudines  .  .  .  excepto 
meo  huusgavel,  tanto  videlicet  quantum  eaedem  mansurae  dederunt "  (C.  C.  R., 
ii,p.  439).  And  again:  "concede  .  .  .  terram  in  Usgata  (Ousegate)  .  .  .  quietam 
ab  huusgavel  "  {ibid.,  p.  439).  Terram  seems  to  refer  to  land  only,  but  it  very  prob- 
ably means  both  the  lands  and  houses  in  Ousegate. 

*  Dugdale,  Monaslicon,  iii,  p.  124:  tenements  were  held  "  per  annuum  redditum 
vocatum  Had-govelle." 

'  Arnold,  Memorials  of  St.  Edmund's  Abbey,  i,  p.  303 :  "  quando  aliquis  delegabat 
terram  burgagii  in  elemosinam  conventui  .  .  .  terra  ilia  solebat  de  cetero  esse 
quieta  de  haggovele."  The  monks  could  well  afford  to  excuse  a  payment  of  a 
farthing  or  a  penny.     See  also  C.  A .  D.,  ii,  pp.  224-225. 

*  C.  A.  D.,  ii,  p.  176:  a  grant  saves  "  the  King's  ser\'ice  of  id.  ad  hadgabulum." 
In  another  grant  {ibid.,  p.  180),  "  the  king's  service,  viz.  haggabulum  "  is  saved  out 
of  the  chief  lord's  rent. 

*  C.  P.  R.,  a.  1403,  p.  308:  "  rent  of  assize  called  '  hadgavel.'  " 

'  Records  of  the  Corporation  of  Bedford,  pp.  101-112.  The  name  there  is  '  hag- 
able.'  The  hawgables  of  the  Records  are  owed  to  the  corporation,  run  from  3d. 
to  3s.  4d.,  and  land,  site  of  hospital,  etc.,  all  owe  these  rents,  and  probably  con- 
tinued to  owe  them,  though  they  were  even  then  ten  years  in  arrears.  See  also 
C.  A.  D.,  i,  p.  9. 

'  Robert  Clutterbuck,  The  History  and  Antiquities  of  the  County  of  Hertford 
(1815-27),  ii,  app.,  p.  I :  "  est  ibidem  quidam  redditus  assisi  qui  vocatur  Haganel  " 
{temp.  Henry  IV). 

'  At  Bodmin  in  Cornwall,  and  possibly  in  other  boroughs,  there  was  an  approxi- 
mation to  hawgables.  A  few  '  ancient  tenements  '  were  still  paying  '  High  Rents  ' 
(haw  rents)  in  1835  {Parliamentary  Papers,  1835,  xxiii,  p.  447). 


BURGAGE  RENTS  65 

or  infrequently  gable,  as  a  name  for  the  fixed  rents  in  the  bor- 
oughs. In  1 103-15  ^  there  was  compiled  what  may  be  called 
an  expansion  of  Domesday  for  a  single  city,  Winchester,  the  old 
West  Saxon  capital.  This,  the  Liber  Winton',  follows  much  the 
same  plan  as  Domesday  in  giving  the  conditions  of  rent,  customs, 
and  holdership  both  '  T.  R.  E.  et  modo.'  The  landgable  is  a 
constant  feature,  though  not  every  tenement  is  charged  with  it, 
and  is  of  varying  amount,  from  five  to  thirty  pence,  many  rents 
being  each  six  pence.^  The  customals  of  the  older  boroughs 
seldom  make  any  reference  to  the  burgage  rent;  it  is  of  small 
avail  to  look  for  landgable  in  them.  Grants  of  real  property, 
however,  use  the  expression  frequently,  as  at  Gloucester,^  where 
the  baihffs  rendered  accounts  de  longabulo,^  Bristol,  where  John's 
charter  recognized  it,^  and  Bath.®  Waterford  knew  the  land- 
gable,^ so  too  did  Cork,^  the  term  being  no  doubt  borrowed  from 
Dublin,  where  it  is  found  in  John's  charter  ^  and  in  the  records 

^  J.  H.  Round  in  The  Victoria  History  of  the  Counties  of  England:  Hampshire  and 
the  Isle  of  Wight,  i,  p.  527. 

^  See  D.  B.,  iv,  pp.  532  et  seq.,  S.  i  to  iib.  The  usual  entry  runs:  "  A.  tenuit  i 
domum  T.R.E.,  reddentem  vi  d.  de  langabulo,  modo  tenet  B."  who  pays  the  same 
customs  and  so  on  (f.  3).  Domus  is  the  common  name  for  messuage,  sometimes 
terra.  At  times  the  landgable  is  mentioned  though  not  its  amount;  at  times  the 
landgable  may  be  contained  in  the  consuetudines,  as  "  modo  tenet  G.  .  .  .  et 
reddit  langabulum  et  alias  consuetudines"  (f.  3);  the  holder  T.R.E.,  rendered 
customs  alone.  One  burgess  "  faciet  consuetudines  excepto  langabulo  "  (f.  7). 
Another  "  tenuit  i  terram  .  .  .  et  dabat  langabulum  "  (f .  8b) ;  the  reference  may 
be  to  land  with  no  house  thereon.  The  bishop  of  Winchester  has  the  landgable 
from  "  XXX  domus  supra  fossatum  "  (f.  9).  These  rents  are  somewhat  high  when 
compared  with  those  at  Cambridge  and  other  older  boroughs. 

3  Stevenson,  Records  of  Gloucester,  p.  82 :  "  i§d.  for '  longable '  ";  the  term  occurs 
in  another  grant  of  the  same  period  (ibid.,  p.  83),  in  two  grants  cir.  a.  1220  (ibid., 
pp.  103-104),  in  four  grants  aV.  1230  (ibid.,  pp.  140,  141,  156, 157);  the  landgables 
run  from  3far.  to  3d. 

*  H.  M.  C,  Rep.,  12,  app.,  pt.  9,  p.  420  (t.  Ed.  I). 

*  Nichols  and  Taylor,  Bristol,  i,  p.  96,  cir.  a.  1188:    "by  landgable  service." 
8  King  and  Watts,  Records  of  Bath,  pp.  9,  n.  5,  xvi  (a.  1218,  1250).     It  occurs 

in  two  grants;  the  amounts  are  5d.  and  6d.  respectively.     Cf.  Winchester. 

'  C.  C.  R.,  i,  p.  158,  a.  1232;  H.  M.  C,  Rep.,  10,  app.,  pt.  5,  p.  316:  "  shall  .  .  . 
pay  his  .  .  .  longable  to  the  balif  "  (customal).  Ibid.,  p.  329;  "  the  Kings  chief 
rent,  called  Longable." 

*  C.  C.  R.,  i,  p.  267,  a.  1242. 

^  Walsh,  Dublin,  i,  p.  379;  Gale,  Corporate  System  of  Ireland,  app.,  pp.  i-iv; 
all  land  within  and  without  the  walls  is  held  "  in  free  burgage,  and  by  the  service 
of  landgable." 


66  BURGAGE  TENURE  IN  ENGLAND 

of  transfer  of  communal  realty.'  At  Dublin,  and  possibly  at 
other  cities,  there  seems  to  have  been  confusion  between  the 
rents  and  the  landgables  due  from  messuages  of  which  the  city 
was  chief  lord,  leading  to  complaints  by  the  citizens  of  being 
overcharged,  followed  in  turn  by  efforts  on  the  part  of  the  cor- 
poration to  limit  the  size  of  both  a  messuage  and  its  landgable.'^ 
At  Oxford  the  landgable  seems  sometimes  to  have  been  very 
high  for  a  borough  of  its  character,  at  least  in  the  thirteenth 
century.  On  the  other  hand  very  few  tenements  were  liable 
to  this  rent,  unless  the  Hundred  Rolls  have  omitted  much.' 
At  Norwich  the  landgable  was  low  even  for  an  East  Anglian 
borough.''  At  Gloucester  its  incidence  and  amounts  were  the 
subject  of  a  careful  compilation.^     At  Chester  landgable  was  one 

1  Gilbert,  Records  of  Dublin,  i,  p.  93,  a.  1261;  "  land  .  .  .  escheated  to  the  city 
for  nonpayment  of  landgable  for  thirty  years  and  upwards."     See  also  ibid.,  p.  95. 

*  These  records  are,  however,  too  late  in  date  to  be  of  much  comparative  value. 
The  corporation  tried  to  prevent  confusion  by  ordering  that  the  collector  of  the 
landgable  should  not  collect  the  rents  (Gilbert,  Records  of  Dublin,  i,  p.  452,  a.  1555). 
In  1546-47  a  tenant  complained  that  his  tenement  had  to  pay  "  moche  more 
rent  unto  the  landgable  "  than  it  should  "  by  the  old  record  or  roll  "  (ibid.,  p.  416). 
The  ancient  landgable  in  Dublin  was  low  and  variable  in  amount  (C.  P.  R., 
a.  1279,  p.  379:  3 id.;  and  the  references  below).  According  to  the  laws  and  usages 
of  the  city,  in  other  words  its  customal,  "  the  extent  of  each  burgage  within  the 
city  should  not  exceed  64  feet  [frontage];  yearly  landgable,  isd."  (Gilbert, 
Records  of  Dublin,  i,  p.  224);  one  house  had  been  charged  with  5s.  to  the  landgable 
in  1500  {ibid.,  p.  386),  which  however  was  '  rclysht '  (released)  to  i2d.  a  year  for  59 
years.  Possibly  the  landgable  had  risen  as  the  messuage  increased  in  size;  probably 
the  landgable,  the  rent,  and  the  record  are  all  confused,  for  the  essence  of  landgable 
is  fixedness  and  perpetuity.  It  may  be  that  causes  which  possibly  had  originally 
produced  unequal  landgables  were  still  working  in  Dublin  after  the  close  of  the 
middle  ages. 

'  R.  II.,  ii,  p.  797:  "  N.  dc  K.  tenet  quandam  domum  .  .  .  et  debet  xxj  d.  de 
langabulo  ...  ad  firmara  ville  Oxon'."  Another  messuage  owes  3id.  {ibid.,  p. 
802),  two  others  i2d.  (p.  797),  another  half  a  mark  (iT/iJ.,  p.  802),  two  others  24d. 
each  {ibid.,  p.  799). 

*  Stanleys.  Mayor,  etc.,  fif.  16,  20-21,  25  (28  Ed.  I,  1305,  1333).  There  arc  land- 
gables of  a  farthing,  a  half-penny,  a  penny.  The  last  seems  to  include  the  rent  of  a 
strip  in  the  fields,  this  is  probably  not  the  case,  however,  the  appearance  arising 
from  the  form  of  the  record. 

'  Cole,  Rental  of  the  Houses  in  Gloucester,  1455.  The  landgable  was  low  and 
variable,  running  from  one  farthing  for  a  "  toft  with  adjoining  curtilage  "  to  4s. 
6}d.  for  a  "  tenement  with  appurtenances."  See  the  Rental,  pp.  45  and  57.  The 
landgables  were  usually  due  the  king,  sometimes  the  Abbot  of  Gloucester.  See 
Stevenson,  Records  of  the  Corporation  of  Gloucester,  pp.  156-157,  cir.  a.  1230. 


BURGAGE  RENTS  67 

name  for  the  rent  of  assize;  ^  the  same  term  may  possibly  have 
been  in  use  at  Lincoln.^  In  the  hst  of  burgage  rents  which  follows 
the  references  show  where  the  little  light  here  thrown  on  the  sub- 
ject has  been  obtained,  —  from  a  few  pubHshed  records  of  cor- 
porations, a  stray  item  in  the  Patent  Rolls,  a  casual  reference 
in  a  grant  or  deed.  In  a  later  chapter  (see  p.  165)  an  attempt 
to  explain  the  significance  of  the  facts  here  set  forth  will  be  made; 
for  the  moment  merely  the  rents  themselves  will  be  presented. 

Borough         Amount  of  Burgage  Rent        Borough         Amount  of  Burgage  Rent 

Agardsley i8d.^  Berwick   6d.' 

Alnwick   6d.-2s.  6d.^  Bideford 6d.,  lad.^" 

Altringham   i2d/  Bradford i6d.  (average)" 

Barnstaple     8d.  (average)  *  Bradninch    6d.^ 

Bath 6dJ  Bridgnorth §d." 

Bedford   2|d.-is.  yd.*  Bridgwater 6d.,  i2d." 

^  C.  A.  D.,  iii,  p.  394.  A  tenement  in  the  "great  street  of  Chester"  owed 
"  to  the  lord  earl  [of  Chester]  §d.  .  .  .  as  Londgable."     Gable  is  used  also. 

^  Ross,  Civitas  Lincolnia,  p.  i.  According  to  this  author  the  burgage  rent  at 
Lincoln  was  id.  on  each  messuage,  and  was  called  the  *  Landtoll  Penny.'  The 
statement  as  to  the  amount  of  the  rent  is  correct  (see  C.  I.  M.,  v  (Ed.  II),  pp.  198  and 
363)  though  apparently  only  a  happy  guess  by  the  author,  no  authority  being  cited. 
It  is,  however,  almost  the  only  correct  historical  statement  in  his  book.  If  the  name 
for  the  burgage  rent  be  as  Mr.  Ross  tells  us,  then  Lincoln,  where  of  all  places  one 
would  expect  to  meet  hawgable,  must  be  placed  in  a  class  by  itself  in  respect  to  a 
name  for  the  rent  of  assize.  Ross  begins  well  by  telling  his  readers  that  he  has  not 
found  Lincoln's  Charter  from  Henry  II  among  the  ancient  records  of  the  Corpora- 
tion. The  charter  is,  however,  printed  in  Rymer,  Foedera,  i,  p.  40  (quoted  by 
Stubbs,  Select  Charters,  p.  166)  and  H.  M.  C,  Rep.,  14,  app.,  pt.  8,  p.  i.  He  also 
says  (p.  6)  that  fifty  years  after  the  Conquest  the  murder  fine  brought  in  so  little 
revenue  that  an  annual  tax  (on  boroughs)  was  imposed  in  its  place.  It  almost 
seems  as  if  Mr.  Ross's  work  were  not  quite  trustworthy. 

^  Mosley,  Tutbury,  app.  viii,  p.  384. 

*  Tate,  Alnwick,  \,  p.  251. 

^  Parliamentary  Papers,  1835,  xxvi,  p.  2574.     The  shilling  rent  covers  a  burgage 
and  an  acre  for  the  same  in  the  common  fields. 
6  H.  M.  C,  Rep.,  9,  p.  211,  2  Ed.  L 
^  King  and  Watts,  Municipal  Records  of  Bath,  pp.  xvi,  xvii. 

*  Records  of  the  Corporation  of  Bedford,  pp.  5,  101-112. 
^  Scott,  Berwick,  p.  254. 

">  Watkins,  Bideford,  p.  13. 

"  James,  History  of  Bradford,  p.  61. 

^^  Ballard,  British  Borough  Charters,  p.  46. 

"  C.  /.  M.,  V,  p.  46,  2  Ed.  II. 

"  H.  M.  C.,i?e/'.,3,p.3ii. 


68  BURGAGE  TENURE  IN  ENGLAND 

Borough        Amount  of  Burgage  Rent        Borough         Amount  of  Burgage  Rent 

Bridport 3d.,  etc.*  Cork lad." 

Bristol    id.-2s.  6d.*  Dartmouth    3d.,  6d.,  etc." 

Burton-on-Trent i2d.*  Denbigh id." 

Bury  Saint  Edmunds  .  id.*  Doncaster    2d.,  6d.,  etc." 

Caermarthen    i2d.'  Drogheda i2d.*'' 

Cambridge Jd.,  id.,  etc.*        Dublin   3id.,  isd.,  etc." 

Cardiff  1 2d.^  Dunheved   id.** 

Carlisle id.'  Durham ijd.  to  2S.*» 

Carlow i2d.'  East  Grinstead 3d.** 

Carnarvon 1 2d."'  Evesham   2d.-4od.*' 

Chard     i2d."  Frodsham i2d.** 

Chester Jd.,  etc."  Gannoc 24d.*' 

Cloyn 2jd.,  $d.,  etc."     Gloucester id.  to  4s.  6d.*' 

Colchester  id.,  2d.,  etc."       Grimsby 6d.*' 

Congleton    6d.  (i2d.  ako)  "  Hereford i2d.,  7jd  * 

'  C  /.  M.,  i,  p.  222,  50  Henry  IH;  ibid.,  v,  p.  67,  2  Ed.  II. 

*  BickJey,  Litlle  Red  Book  of  Bristol,  i,  pp.  2-9. 
'  Ballard,  British  Borough  Charters,  p.  49. 

*  Dugdale,  Monasticon,  iii,  p.  153. 

'  Daniel-Tyssen,  Charters  of  Carmarthen,  p.  49. 

•  R.  //.,  ii,  pp.  360,  361,  370  et  pass.;  H.  M.  C,  Rep.,  i,  pp.  70,  80. 
'  Matthews,  Cardiff  Records,  i,  p.  12. 

«  C.  /.  M.,  Henry  VII,  i,  p.  71. 

•  Hore,  Wexford,  v,  p.  119. 
'"  Lewis,  Snowdonia,  p.  68. 

"  C.  P.  R.,  a.  1286,  p.  216.  «  C.  A.  D.,  iii,  p.  394. 

"  Caulfield,  Council  Book  of  Youghal,  pp.  579-583. 

"  Bcnham,  Red  Parchment  Book  of  Colchester,  pp.  45  et  seq.;  C.  P.  R.,  a.  1292, 
p.  18. 

''  Head,  Congleton,  p.  34. 

"  Caulfield,  Council  Book  of  Cork,  p.  x:  "  by  such  .  .  .  rent  as  the  burgesses 
of  Bristol  render  yearly  of  their  burgages." 

"  H.  M.  C,  Rep.,  5,  pp.  598-600. 

'*  Williams,  Denbigh,  p.  306. 

"  Tomlinson,  Doncaster,  pp.  35-36. 

*"  Ballard,  British  Borough  Charters,  p.  48. 

*'  C.  P.  R.,  a.  1279,  p.  379;  Gilbert,  Records  of  Dublitt,  i,  pp.  224,  386. 

**  Peter,  Launceston  and  Dunheved,  p.  174. 

**  Hutchinson,  Durham,  ii,  p.  12,  note. 

'*  Hills,  East  Grinstead,  pp.  40-41. 

**  Dominicus,  Chronicon  Abbatiae  de  Evesham,  p.  211. 

**  Ballard,  British  Borough  Charters,  p.  50. 

*'  C.  C.  R.,  i.  p.  378,  a.  1252. 

**  Cole,  Rental  of  the  Houses  in  Gloucester,  1455,  pp.  45-57. 

*»  C.  /.  M.,  ii,  p.  114,4  Ed.  I. 

»  C.  /.  A/.,  V,  p.  213,  6  Ed.  II;  D.  B.,  i,  f.  179a. 


BURGAGE  RENTS  69 

Borough        Amount  of  Burgage  Rent        Borough         Amount  of  Burgage  Rent 

Huntingdon av.  under  sd.^  Manchester i2d." 

Inistiogue lad.^  Melcombe  Regis     id.,  etc." 

Ipswich id.^  Montacute i6d.i' 

Leeds   i6d.*  Morpeth i6d.^' 

Leek  izd.*  Newcastle    ifd.,  2d.,  etc.* 

Leicester ^d.,  etc.*  Newport 6d.  and  izd.*^ 

Lewes     av.  under  6d.^  New  Ross i2d.,  ?  3d.^ 

Lichfield i2d.'  Northampton   id." 

Limerick i2d.'  Norwich    jd.,  ^d.,  id.** 

Lincoln id.^"  Okehampton i2d.*^ 

Liverpool i2d."  Oswestry   i2d.*' 

Llandovery   i2d.*2  Oxford     35d.,  etc." 

London id.,  etc.^'  Pevensey  Sd.  to  2od.^ 

Lostwithiel    6d.^*  Pontefract lad.*^ 

Ludlow id.,  2d.,  etc.^^  Portsmouth   jd.,  id.,  2d., 

etc.«> 

'  D.B.,  i,  f.  203a. 

^  Gale,  Corporate  System,  app.,  p.  xii. 

^  C.  A.  D.,  ii,  p.  176. 

*  Wardell,  Municipal  History  of  Leeds,  app.,  p.  iv. 

^  Ballard,  British  Borough  Charters,  p.  50. 
^  Bateson,  Records  of  Leicester,  i,  p.  382. 

'  D.  B.,  1,  f.  26a. 

^  Harwood,  Lichfield,  p.  381. 

'  Lenihan,  Limerick,  p.  48,  note  i. 

1°  C.  I.  M.,  v,  pp.  198,  363;  Ross,  Civitas  Lincolnia,  p.  i. 

"  Picton,  Liverpool  Records,  i,  p.  13. 

^^  Parliamentary  Papers,  1835,  xxiii,  p.  301. 

"  C.  /.  M.,  Henry  VII,  i,  p.  206,  and  others. 

"  Ballard,  British  Borough  Charters,  p.  48. 

1*  Ludlow  Charters,  pp.  60-61. 

'^  Whitaker,  Manchester,  ii,  p.  581. 

"  Moule,  Weymouth,  p.  106. 

^*  Somerset  Record  Society,  [Publications],  viii,  pp.  210  f, 

19  H.  M.  C,  Rep.,  6,  p.  527. 

^  Brand,  Newcastle,  i,  pp.  75,  347. 

^'  C.  /.  M.,  V  (Ed.  II),  p.  94;  Parliamentary  Papers,  1835,  xxiv,  p.  773. 

22  Hore,  Wexford,  i,  p.  151. 

^  C.  P.  R.,  a.  1314,  p.  199. 

^  Stanley  v.  Mayor,  etc.,  ff.  15,  16,  25. 

*^  Ballard,  British  Borough  Charters,  p.  48. 

2^  Tait,  Mediaeval  Manchester,  p.  65. 

"^  R.  H.,  ii,  p.  802  et  pass. 

28  D.  B.,  i,  f.  20b. 

^  H.  M.  C,  Rep.,  8,  p.  269;  Parliamentary  Papers,  1835,  ^^v,  p.  1673. 

^  East,  Records  of  Portsmouth,  pp.  493-502. 


70 


BURGAGE  TENURE  IN  ENGLAND 


Borough        Amount  of  Burgage  Rent        Borough         Amount  of  Burgage  Rent 


Rathcool    lad.* 

Rathmore 1 2d.* 

Ruyton i2d.' 

Rye 3d.-2s.  6d.* 

Salisbury   i2d.* 

Salford i2d.* 

Scarborough    4d.  and  6d7 

Shaftesbury     Jd.' 

Shrewsbury av.  under  yd.' 

Stockport    I2d.'" 

Swansea 1 2d." 

Swords  1 2d." 

Taunton av.  6d." 

Tewkesbury 1 2d." 


Uttoxeter    i2d." 

WaUingford ?  id.»« 

Walsall     i2d." 

Waterford    I2d.  (probably)" 

Wells    i2d."' 

Wexford     1 2d.*' 

Weymouth id.-ss.*' 

Whitby sd.» 

Winchelsea id.,  2d.,  etc.** 

Winchester id.,  6d." 

Woodstock .  av.  4d.** 

Yarmouth   id. (probably)** 

York    id." 

Youghal  i2d.*' 


There  seem  to  be  many  shilling  boroughs  in  this  list,  but  as 
far  as  size  and  trade  go  they  might  all  be  added  to  London  without 
very  much  increasing  its  population  or  its  commerce.  They 
are  new  boroughs  and  their  charters  commonly  state  the  amount 

'  Gale,  Corporate  System,  app.,  p.  x. 

*  Ibid.,  app.,  p.  XX. 

'  Parliamentary  Papers,  1835,  xxvi,  p.  2858. 

*  Holloway,  Rye,  pp.  323-326. 

'  R.  C.  Hoare,  The  History  of  Modern  Wiltshire,  vi,  p.  738. 
'  Tait,  Mediaeval  Manchester,  p.  63. 
^  Baker,  Scarborough,  p.  28;  C.  C.  R.,  i,  p.  417. 
'  Mayo,  Records  of  Slmflesbury,  p.  79. 
»  D.  B.,  i,  f.  252a. 

'"  Tait,  Mediaeval  Manchester,  p.  63. 
"  Ballard,  British  Borough  Charters,  p.  47. 
•*  Ibid.,p.4g.  »  D.B.,i,  f.  87b. 

'*  Bennett,  Tewkesbury,  p.  321. 
"  Mosley,  Tutbury,  app.  ix,  p.  385. 
'*  Hedges,  WaUingford,  i,  p.  345. 
"  Willmore,  Walsall,  p.  160. 
"  H.  M.  C,  Rep.,  10,  app.,  pt.  5,  p.  316. 
"  Ballard,  British  Borough  Charters,  p.  49. 
*"  (iale,  Corporate  System,  app.,  p.  xvii. 
*'  Moulc,  Weymouth,  p.  106. 
**  Atkinson,  Whitby,  p.  268. 
*'  Cooper,  Winchelsea,  pp.  44-53,  227  et  seq. 

**  C.  I.  M.,  Henry  VII,  i,  p.  255,  6  Henry  VII;  D.  B.,  iv,  pp.  531  et  seq. 
*'  Ballard,  Woodstock,  pp.  8,  9. 

*«  D.  B.,  ii,  p.  ii8a.  "  C.  P.  R.,  a.  1296,  p.  208. 

^  Caulficld,  Youghal,  p.  Ix. 


BURGAGE  RENTS  7 1 

of  the  burgage  rent.  At  Bridgwater  the  twelvepenny  rent  is 
taken  from  a  grant,  which  may  be  inclusive  of  a  reserved  rent, 
a  rent  charge.  The  place  is  supposed  to  have  been  and  probably 
was  a  shilling  borough.  The  halfpenny  messuage  at  Bridgnorth 
was  on  castle  land;  its  rent  was  not  fixed  by  the  rents  of  the 
borough.  At  Hereford  in  the  Domesday  era  the  rents  were  less 
than  those  of  the  fourteenth  century.  At  Berwick  the  burgage 
rent  was  called  burgh  mail;  but  Berwick  had  been  part  of  Scot- 
land. At  Durham  the  term  for  the  rents  of  assize  was  landmale, 
at  Ludlow  the  soc  rents. 

At  Scarborough  the  fourpenny  rent  was  for  tenements  whose 
houses  stood  with  their  ends  to  the  street;  when  the  side  of  a 
house  faced  the  street  the  rent  was  sixpence;  possibly  such  tene- 
ments were  larger.^  Scarborough  had  another  custom  in  respect 
to  its  burgage  rents,  which,  as  far  as  is  yet  known,  was  unique 
as  well  as  peculiar:  he  who  became  chief  lord  or  direct  holder  of 
eight  or  more  messuages  and  enclosed  them  in  one  paid  but  one 
rent  of  sixpence  for  all.^  Sixpence  was  the  average  landgable  at 
Winchester  when  Liber  Winton'  was  compiled;  the  penny  bur- 
gage rent  is  of  a  later  date.  Both  rents  and  burgage  rents  were 
higher  there  in  1 103-15  than  in  any  other  important  borough  in 
England.^ 

At  some  of  the  small  chartered  boroughs  the  twelvepenny 
rent  lay  on  the  burgage  alone:  land  in  the  common  fields  was 
subject  to  an  additional  rent  of  a  shilHng  for  each  acre,  as  at 
Llandovery;  a  shilHng  for  three  acres,  as  at  Oswestry;  or  four- 
pence  an  acre  for  each  of  three  acres,  as  at  Ruyton.  At  Denbigh, 
while  the  ordinary  burgage  rent  was  a  penny,  one  burgess  paid 
fourpence  for  his  tenement,  two  other  burgesses  each  twelvepence 

^  The  gable  lay  on  the  land  rather  than  the  house  (Brown,  Yorkshire  Inquisitions, 
i,  p.  164). 

'^  Ibid.,  i,  p.  22.  This  custom  was  declared  in  1250  during  the  course  of  a  suit 
between  the  king  and  the  abbot  of  Citeaux,  certain  of  whose  tenements  the  king 
had  claimed.  There  were  eight  all  told  (they  must  have  been  contiguous)  for  which 
the  abbot  rendered  only  6d.  as  gable.  The  jurors  said  that  "  the  custom  of  the 
borough  is  such,  that  if  any  burgess  enclose  in  one  eight  messuages  or  more  yielding 
gablage  severally,  he  shall  yield  one  gablage  only,  that  is  6d." 

^  To  follow  the  rule  they  should  remain  so;  rents  in  the  Domesday  era  are  the 
same  in  amount  as  rents  in  the  era  of  the  Renaissance. 


72  BURGAGE  TENURE  IN  ENGLAND 

for  theirs,  and  a  third  was  charged  with  one  and  fourpence  for 
his  two  messuages,  possibly  because  he  was  a  parson.  Denbigh 
and  Gannoc  are  the  same.  As  founded  in  1252  the  town  was 
known  as  Gannoc;  *  then  the  Welsh  wasted  it  so  thoroughly 
that  Denbigh  was  a  new  borough.  At  Portsmouth  pepper  rents 
were  payable  from  a  few  tenements;  they  seem  to  be  the  only 
rents  in  kind  due  the  bailiffs  toward  the  Firma  Burgi  from  mes- 
suages in  any  borough.^  It  need  hardly  be  said  that  the  bailiffs 
did  not  pay  pepper  to  the  Exchequer.  The  existence  and  reten- 
tion of  the  pepper  rents  were  probably  due  to  the  fact  that  parts 
of  Portsmouth,  as  the  parish  of  Portsea,  had  been  held  originally 
by  monasteries,  as  Southwick,  and  pepper  remained  as  part  of 
the  burgage  rent. 

By  no  means  all  the  boroughs  of  mediaeval  England,  or  even 
all  those  of  this  essay,  appear  in  the  preceding  list,  which  might 
have  been  longer  were  it  not  that  many  of  the  borough  histories, 
so-called,  devote  so  much  space  to  Roman  fiction  that  they  have 
none  left  for  English  fact.  It  would  seem,  however,  that  a  suf- 
ficient number  of  the  boroughs,  especially  of  the  larger  boroughs, 
has  been  enumerated  to  be  geographically  representative,  and  to 
show,  both  in  time  and  place,  the  variability  of  the  burgage  rent.^ 

It  may  be  premised  that  in  boroughs  which  had  a  grant  of  the 
Firma  Burgi  the  elected  town  bailiffs  collected  the  chief  rents. 
In  the  larger  boroughs  which  had  no  grant  of  the  farm  the  rule 
was  the  same,  though  they  acted  often  for  the  sheriff;  in  small 
boroughs  the  collector  was  usually  the  lord's  steward  or  bailiff.^ 

*  The  rent  was  two  shillings  for  two  acres  without,  and  half  an  acre  within, 
the  walls. 

*  All  sorts  of  rents  in  kind,  as  hens,  cloves,  etc.,  are  payable  from  tenements 
in  some  boroughs,  notably  Leicester,  but  they  are  not  burgage  rents. 

'  This  rent  was  the  only  burden  on  the  tenement  except  the  cases  previously 
mentioned  where  each  burgage  holder  must  find  a  man  to  defend  the  borough  at 
Denbigh,  and  that  of  the  burgage  at  Liverpool  which  had  to  provide  stable  for  the 
lord's  horses.  To  these  must  be  added  another,  a  messuage  in  Chester  which  was 
obliged  to  find  a  "  judicator  yearly  in  the  portmote  of  Chester  "  (C.  A.  D.,  iii,  p.  350, 
24  Henry  VI). 

*  C.  C.  R.,  i,  p.  378.  At  Gaimoc  in  1252  the  burgage  rent  must  "  be  paid  each 
year  to  the  king's  bailifiF." 

At  Bury  Saint  Edmunds  one  tenement  paid  "  id.  yearly  to  the  provost  of  St. 
Edmund's  for  Hadgovel  "  (C.  A.  D.,  ii,  p.  224),  while  another  paid  the  same  rent  to 


BURGAGE  RENTS  73 

At  Kinsale,  which  had  no  grant  of  the  farm  as  far  as  evidence 
shows,  the  town  bailiffs  were  the  collectors/  and  at  Liverpool, 
whose  Firma  Burgi  was  intermittent,  being  granted  for  short 
terms  at  varying  intervals,  the  bailiffs  collected  the  burgage  rents 
and  paid  them  to  the  Earl  of  Lancaster,  lord  of  the  borough.'* 
Burgages  are  found  lying  within  the  fee  of  the  castle;  in  Norwich 
at  least  the  sheriff  of  the  county  collected  their  rents.^  Now  and 
again  a  borough  which  could  show  no  grant  of  the  Firma  Burgi 
resisted  collection  of  rents  by  the  lord  or  his  official;  thus  did 
Barnstaple  ■*  and  Petersfield.^ 

Default  in  payment  of  the  burgage  rent  for  any  considerable 
period  entailed  forfeiture  of  the  tenement  to  the  community, 
if  the  borough  was  '  held  in  chief.'  ^  In  boroughs  which  had 
no  grant  of  the  Firma  Burgi  the  lord  might  seize  such  a  tenement 
as  a  matter  of  course,  though  in  some  their  charters  provided 
that  tenantless  tenements,  that  is  those  which  paid  no  rents, 
should  be  taken  by  the  community.^     It  seems  that  in  the  older 

the  sacristan  of  the  abbey  {ibid.,  p.  225).  The  result  was  the  same;  no  doubt  St. 
Edmund  got  the  rent. 

At  Weymouth  the  burgesses  paid  their  rents  to  the  abbot  or  his  representative 
(Moule,  Weymouth,  p.  17). 

At  Pontefract,  "  quum  pretor  [  ?  praepositus]  pacaverit  domino  firmam  burgi " 
(not  a  fee- farm)  "...  removebit  ilium  dominus  et  ponet  quemcumque  voluerit  " 
(H.  M.  C,  Rep.,  8,  p.  270);  but  the  burgesses  shall  be  preferred,  "  si  tantum  dare 
voluerint  quantum  alii." 

1  Caulfield,  Council  Book  of  Kinsale,  p.  Ixxxv.  All  the  revenues  of  the  town  were 
accounted  for  before  two  elected  burgesses.  If  the  two  were  negligent  the  Earl 
of  Desmond  acted  as  auditor. 

^  Picton,  Liverpool  Records,  i,  p.  7. 

'  Stanley  v.  Mayor,  etc.,  f.  24. 

*  H.  M.  C,  Rep.,  9,  pt.  I,  p.  212  (10  Henry  IV). 

^  Atcheson,  Case  of  the  Borough  of  Petersfield,  p.  15  {t.  Henry  VIII).  This 
borough  had  been  paying  a  fee-farm  rent  (at  least  that  is  what  the  burgesses  thought 
it)  of  £7  IS.  2d.  to  its  lord,  the  Duke  of  Buckingham,  and  had  acted  in  all  respects 
as  a  real  corporation;  then  there  came  a  change  of  lords,  the  Duke  having  been 
attainted,  and  conflict  arose  between  lord  and  borough  over  the  rents.  The  bur- 
gesses coiJd  produce  no  proof  of  their  assertion  that  they  held  the  town  in  fee,  and 
lost  their  case. 

^  See  H.  M.  C,  Rep,,  10,  app.,  pt.  5,  p.  316:  "  And  that  it  be  lawefull  to  the 
ballif  ...  to  have  an  action  of  dette  agaynste  hym  that  is  soo  behynde  [in  pay- 
ment of  the  longable]." 

^  Mosley,  Tutbury,  p.  384:  "  if  it  shall  happen  that  any  burgage  be  empty  and 
void  beyond  one  year  and  a  day,  then  the  other  burgesses  shall  answer  for  the  rent 


74  BURGAGE  TENURE  IN  ENGLAND 

boroughs  such  forfeiture  was  not  strictly  enforced,  probably 
because  the  rent  was  so  small.  Sometimes  collection  of  the  gable 
appears  to  have  been  neglected  for  years  and  then  often  forgotten.^ 
It  is  probable  that  at  an  early  date  most  of  the  messuages  in  a 
borough  paid  landgable  or  burgage  rent.'^  It  is  certain  that  in  the 
Domesday  era  many  tenements  paid  none,'  while  in  the  period 
inmiediately  preceding  the  Reform  Bill  the  only  tenements 
which  paid  chief  rents  were  usually  the  fag-ends  of  boroughs.* 
This  result  came  mainly  from  division  of  the  original  messuages,* 
for  the  records  show  very  little  extension  of  the  borough  bounds 
during  the  mediaeval  period.^ 

of  the  same  as  of  others,  together  with  all  service,  secular  exaction,  and  demand 
to  free  burgages  belonging."  Charter  to  Agardsley,  /.  Henry  III.  It  is  implied 
that  the  commonalty  is  now  the  chief  lord  of  such  a  tenement.  At  Uttoxeter  the 
charter  left  no  ground  for  doubt:  a  burgage  that  was  empty  for  a  year  fell  to  the 
burgesses,  who  took  it,  paid  its  rent  to  the  lord  (Earl  of  Derby)  and  made  their 
profit  of  it;  the  lord  renouncing  further  claim  thereto  (ibid.,  pp.  385-386, 36  Henry 
III). 

At  Liverpool,  in  the  intervals  between  grants  of  the  farm  to  the  burgesses  for 
short  terms,  the  bailiffs  accounted  to  the  lord  (Earl  of  Lancaster)  for  the  rents  of  the 
burgages,  empty  or  otherwise.  The  original  number  of  messuages  was  168,  and 
it  remained  at  this  figure  till  1628.  If  every  tenement  paid  its  rent  the  sum  would 
be  £8  8s.  In  1296,  it  was  £8  7s.  6d.  (Picton,  Liverpool  Records,  i,  pp.  7-8): 
in  1327,  all  were  occupied,  for  the  rent  was  £8  8s.  {ibid.,  p.  9).  In  1346  it  was  £8  4s. 
io|d.-|-i4jd.+6d.  (ibid.,  p.  13),  though  why  i4id.  for  i  I's  burgages  and  6d.  for  J  a 
burgage  should  be  separated  from  the  main  amount  is  not  apparent.  These  records 
show  that  the  lord  in  such  boroughs  as  Liverpool  lost  the  rents  of  empty  messuages. 
They  all  refer,  of  course,  to  original  burgages  on  which  lay  the  burgage  rent. 

'  See  R.  II.,  i,  p.  55,  where  action  was  taken  by  the  burgesses  of  Cambridge  in  a 
case  where  payment  of  hagabidnm  had  not  been  made  for  ten  years.  This,  when 
the  tenement  had  a  tenant,  is  not  forfeiture  but  it  is  rather  a  seizure  for  debt; 
the  name  forfeiture  is  not  suitable  as  it  conveys  a  different  meaning.  Such  a  thing 
as  a  tenement  without  a  lord,  other  than  the  borough  lord,  could  hardly  exist 
in  any  of  the  larger  boroughs.  There  might,  however,  be  empty  messuages  any- 
where; in  the  small  boroughs  their  chief  lord  was  commonly  the  lord  of  the  borough. 

*  That  every  messuage  must  pay  its  landgable  was  certainly  the  case  when  a 
borough  was  created  by  charter. 

'  See  I).  B.,  i,  f.  i8ga  et  pass. 

*  Edward  Torritt,  The  Unref armed  House  of  Commons  (1903),  i,  pp.  33-41. 

*  Sec  in  respect  to  this  subject  Stubbs,  Conslitulional  History  of  England  (1880), 

Hi,  P-  453- 

*  Forgetfulness  in  the  collection  of  the  burgage  rent,  though  it  had  the  ultimate 
effect  of  causing  the  disappearance  of  original  burgages,  was  of  small  moment  till 
late  in  our  period. 


BURGAGE  RENTS  75 

Two  courses  were  commonly  open  to  a  burgess  when  he  divided 
his  property;  he  might  divide  the  burgage  rent  or  continue  to  pay 
it  himself.  The  latter  course  would  leave  the  alienated  part, 
now  another  messuage,  free  from  any  landgable.^  In  most  of  the 
shining  boroughs  there  seems  to  have  been  no  option ;  the  burgage 
rent  remained  at  twelvepence  regardless  of  division,  though  in 
a  few  of  these  towns  there  is  evidence  that  the  first  course  was 
sometimes  the  one  followed.^  These  charter-created,  twelve- 
permy,  baronial  boroughs,  however,  are  not  typical  of  English 
urban  tenure;  some  of  them  are  un-EngHsh  in  various  ways, 
and  they  are  of  small  importance  in  every  respect  as  compared 
with  the  older  boroughs  on  which  no  charter  conferred  the 
burgage  tenure  but  whose  charters  found  the  tenure  there; 
they  are  the  boroughs  of  England  whose  tenure  forms  our  sub- 
ject. In  them  all  sorts  of  processes  seem  to  have  been  at  work. 
Nothing  prevented  a  burgess  from  dividing  his  landgable  as  he 
divided  his  messuage,  and  sometimes  he  did  so.  By  the  time, 
however,  that  divisibility  reached  an  important  stage  in  the 
boroughs,  the  burgage  rent,  low  enough  at  the  start,  even  as 
low  as  or  lower  than  the  minimum  coin  of  the  realm  in  some 
cases,  had  become  so  small  a  fraction  of  the  worth  of  the  tene- 
ment that  it  seems  usually  to  have  been  allowed  to  remain  on 
what  was  left  of  the  original  messuage.^ 

'  It  is,  of  course,  possible  that  in  the  older  boroughs  there  were  tenements  which 
had  never  paid  landgable  ^nd  which  had  no  lords  but  their  holders,  free  allods  as  it 
were.  The  practically  universal  prevalence  of  overlordship  during  the  later  Saxon 
period,  intensified  after  the  conquest,  would  make  the  number  of  such  tenements 
negligible. 

^  The  charters  to  such  boroughs  forbade  increase  above  i2d.;  their  records 
show  no  decrease  below  1 2d.  There  are  exceptions,  as  at  Salisbury  (Hoare,  History 
0}  Modern  Wiltshire,  vi,  p.  738)  where  "  predicti  cives  .  .  .  dicunt  .  .  .  quod 
.  .  .  teneat  unusquisque  suum  liberum  tenementum  .  .  .  reddendo  .  .  .  epis- 
copo  [Sarisbiriensi]  .  .  .  pro  plena  placea  duodecim  denarios  per  annum,  et  qui 
plus  vel  minus  tenuerit  secundum  eandem  quantitatem  respondeat  pro  omnibus 
serviciis."  At  Liverpool  in  1346  (Picton,  Liverpool  Records,  i,  p.  13)  the  bailiffs 
accounted  for  the  rent  of  "  one  burgage,  the  8th  part,  and  i6th  part  of  one  bur- 
gage," i4jd-  This  shows  that  as  the  burgage  was  divided,  so  was  the  burgage 
rent,  for  2id.  is  the  correct  proportion  for  -^w  of  a  twelvepeimy  burgage.  At  each 
of  these  boroughs,  therefore,  the  buyer  of  a  fraction  of  an  original  burgage  was 
responsible  for  a  proportional  share  of  the  rent. 

^  Where  there  had  been  a  change  of  holders  the  term  original  burgage  would  be 


76  BURGAGE  TENURE  IN  ENGLAND 

Though  there  is  great  variability  among  the  older  boroughs,  and 
though  the  rents  of  all  are  low,  it  seems  that  the  landgable  of 
the  ancient  boroughs  of  the  south  and  west  was  in  general  slightly 
higher  than  that  of  those  of  the  north  and  east.'  The  gables 
at  Winchester  about  1 103-15  were  fairly  constant  and  fairly 
high,  and  most  of  the  tenements  owed  them.'*  At  Cambridge 
in  1086  the  rents  were  lower  on  the  whole,  they  varied  more  in 
amount,  and  proportionately  fewer  tenements  owed  them, 
though  the  amount  of  the  landgable  did  not  change  throughout 
the  middle  ages.  Gloucester  resembled  Winchester  to  some 
extent  while  Bristol  and  Dublin  more  nearly  resembled  Cam- 
bridge.^ 

only  relative;  one  part  would  be  as  original  as  another.  Possibly  some  messuages 
were  never  divided.  Custom  and  tradition,  however,  usually  settled  on  one  part 
as  the  '  capital  messuage.' 

1  London  is  included  in  the  latter  class;  the  shilling  boroughs  are  in  neither. 
No  attempt  will  be  made  here  to  separate  the  older  boroughs  into  classes  according 
to  size  of  original  landgable.  For  this  see,  however,  p.  165.  Secondary  influences 
had  affected  the  boroughs  of  north  and  east. 

*  For  Winchester  see  Liber  Winlon\  B.  i  et  seq.;  for  Cambridge,  D.  B.,  i,  f.  189a 
and  R.  IL,  ii,  pp.  356  et  seq. 

^  Though  it  may  be  taken  as  a  matter  of  course  that  the  landgable  never  in- 
creased with  the  increase  of  messuages,  sometimes  the  fact  is  directly  stated,  as  in 
the  following  extracts  from  a  charter  of  Henry  I  giving  lands  to  St.  Peter's  at  York: 
"  Et  eisdem  terris  .  .  .  do  et  confirmo  easdem  .  .  .  consuetudines  .  .  .  excepto 
meo  huusgavel,  tanto  videlicet  quantum  eedem  mansure  dederunt,  ante  quam 
fratres  ejusdem  hospitalis  cas  habuerunt,  nc  propter  numerum  domorum  et  hos- 
tiorum  plus  reddant  "  (C  C.  K.,  ii,  p.  439).  Nor  might  it  be  decreased,  for  the 
custom  at  Scarborough  which  allowed  him  who  enclosed  eight  or  more  messuages 
in  one  to  pay  the  landgable  of  but  one  messuage  for  all  seems  to  be  wholly  excep- 
tional. 

In  Bury  Saint  Edmunds  only  '  ccrta  tenementa  '  were  held  by  '  hadgovclle  ' 
(Dugdale,  Monasticon,  iii,  p.  124);  there  is  no  evidence  for  divided  rents  here, 
it  is  all  for  the  other  course,  and  the  monkish  annalist  of  11 75-1 200  laments  that 
"  terrac  autem  iliae,  nunc  tempore,  in  tot  partes  divisae  sunt,  quod  vix  scitur  a  quo 
ille  census  dari  debet  "  (Arnold,  Memorials  of  St.  Edmund's  Abbey,  i,  p.  303). 

At  Gloucester  the  rent  seems  to  have  lain  on  the  land  rather  than  on  house  and 
land,  for  a  certain  tenement  lies  in  decay  and  "  pays  nothing  by  year  "  though  the 
holder  must  still  pay  his  landgable  (Cole,  Rental  of  the  Houses  in  Clouicster,  p.  5). 
Yet  a  prior  had  "  newly  built  two  tenements  .  .  .  and  he  renders  therefor  for 
landgable  "  {ibid.,  p.  7).  One  tenement  in  Gloucester  rendered  22id.  as  landgable; 
it  was  divided  and  each  holder  thereafter  rendered  iiid.  {ibid.,  p.  55). 

At  Winchester  probably  the  landgable  was  divided  with  the  divided  tenement 
and  consequent  erection  of  new  houses:    "  B.  fecit  supra  illam  terram  i.  domum 


BURGAGE  RENTS  JJ 

In  all  the  older  boroughs,  to  summarize  the  extent  and  situation 
of  the  burgage  rent,  there  were  tenements  which  paid  no  land- 
gable,  even  at  the  date  of  the  earliest  records.  In  Winchester 
these  were  a  minority,  elsewhere  as  a  rule  a  majority,  which 
grew  with  the  growth  of  the  borough  (the  rule  for  the  rent  being 
its  retention  on  some  shrinking  part  supposed  to  represent  the 
original  tenement)  until  the  rise  in  values  and  prices  made  the 
retention  of  the  landgable,  which  was  probably  never  more 
in  some  boroughs  than  a  sign  or  symbol  of  lordship,  a  matter  of 
its  significance  and  not  of  its  worth.  Whatever  the  case  in  the 
beginning,  eventually  the  greater  number  of  the  tenements 
paid  no  burgage  rent  whatever,  and  many  original  burgages 
simply  faded  away.  Freedom  from  the  landgable,  however, 
made  no  difference  either  to  the  tenure  by  which  the  messuage 
was  held  or  to  the  status  of  the  holder;  he  was  still  a  burgess 
and  held  his  tenement  in  free  burgage.^ 

In  the  older  boroughs  the  '  lands  '  in  the  common  fields  seem 
to  have  borne  no  rent  at  all.  Probably  at  one  time  most  mes- 
suages, as  the  word  was  commonly  used,  would  have  their  con- 
nected acre-strips;  the  burgesses  were  mostly  farmers.  Probably 
the  amounts  were  not  very  unequal,  and  the  messuage  may  have 
been  considered  as  consisting  in  part  of  these  lands,  with  the 
burgage   rent   covering   a   burgess's   whole    tenement.       When 

quae  nee  fuit  T.  R.  E.  Modo  tenet  eamO.,  .  .  .  et  reddit  regi  5d.  de  langabulo  " 
{Liber  Winton',  f.  yb).  Nearly  all  the  entries  in  Liber  Winton',  however,  use  domus 
and  not  messuagium  or  tenementum;  most  domus  pay  landgable.  As  the  sum  of  the 
landgable  was  not  increased,  division  of  the  rent  is  probable. 

In  direct  contrast  to  the  custom  at  Winchester,  at  Oxford,  according  to  the 
witness  of  the  Hundred  Rolls,  only  one  tenement  in  thirty-five,  or  thereabout, 
was  liable  to  landgable  {R.  H.,  ii,  p.  797).  Either  the  records  omit  much,  or  mes- 
suages had  been  joined  and  their  burgage  rents  as  well  (the  relatively  high  land- 
gable supports  this  view),  or  the  dead  hand  held  many  tenements  and  their 
landgables  therewith,  for  such  a  condition,  though  infrequent,  was  possible.  (See 
C.  Gross,  in  American  Historical  Review,  July,  1907,  "  Mortmain  in  Medieval 
Boroughs.") 

^  The  term  burgess  is  confined  to  the  freeholder  till  the  later  part  of  our  period. 
Extension  of  the  term  to  all  in-burghers  was  often  contemporary  with  loss  of  con- 
noted political  privileges,  like  extension  of  the  franchise  in  the  later  Roman  Empire. 
Tenants  at  will  and  termors  were  not  burgesses  in  the  early  part  of  our  period; 
"  observe  that  such  tenements  only  are  free  as  owe  neither  service  nor  rent  to  ahy 
one  "  (Boys,  Sandwich,  p.  523). 


78  BURGAGE  TENURE  IN  ENGLAND 

mobility  had  destroyed  equality,  the  rent,  relatively  unimportant 
at  almost  any  time  and  place,  would  be  regarded  as  lying  on  the 
part  whose  ownership  was  apparent,  the  burgage  of  later  days 
within  the  ditch  or  wall.* 

The  part  of  the  original  messuage  which  was  supposed  to 
represent  the  whole,  and  on  which  the  rent  of  assize  rested, 
seems  in  many  cases  to  have  been  called  the  capital  messuage, 
chief  tenement,  or  chief  house,  the  first  term  being  the  oldest; 
the  corresponding  landgable  was  often  called  the  *  chief  rent.' 
At  times  capital  or  chief  may  have  been  used  because  of  the 
size  of  the  messuage;  in  the  later  part  of  the  period  because 
a  tenement  might  have  smaller  tenements  thereon  depending. 
In  the  earlier  part  of  our  period,  however,  the  name  seems 
restricted  to  the  first  sense  alone,  as  at  Pontefract,^  Leeds,' 
and  Scarborough.'* 

The  capital  messuage  seems  to  have  been  likely  to  decrease 
in  size  in  a  growing  borough,*  the  name  still  remaining  with  the 
remaining  part.^      Rent-charges  seem  to  have  lain  oftener  on 

'  Arnold,  Memorials  of  St.  Edmund's  Abbey,  i,  p.  303.  At  one  time  Cambridge 
had  rents  both  on  houses  with  their  lots  and  on  lands,  '  hawgable  and  landgable  '; 
in  the  last  compilation  the  land  rents  disappeared.  Some  of  the  chartered  and 
created  boroughs  had  a  separate  rent  for  each  parcel  of  connected  land. 

*  H.  M.  C,  Rep.,  8,  p.  269.  From  Roger  de  Lacy's  charter  (embodynng  burghal 
custom)  of  5  Rich.  I.  The  same  privileges  were  granted  to  those  who  held  parts 
of  tofts  as  to  those  who  held  whole  tofts,  but  "  siquis  habuerit  plures  domos  in 
tofto  suo  et  locaverit  eas  "  the  occupants  must  pay  4d.  a  year  for  leave  to  trade. 
However,  "  qui  in  capital!  domo  manserit  quietus  erit  et  liber  sicut  burgensis  esset." 
Privileges  of  this  sort  were  not  restricted  to  any  one  messuage  at  Chesterfield 
(Yeatman,  Records  of  Chesterfield,  p.  40). 

'  Wardell,  Leeds,  app.,  p.  iv. 

*  Brown,  Yorkshire  Inquisitions,  i,  p.  22.  This  is  the  previously  quoted  case  of 
the  enclosure  of  the  eight  messuages  by  the  abbot  of  Citeaux.  The  abbot  had 
seven  other  messuages  "  where  the  capital  messuage  ...  is  situate,"  and  every 
messuage  was  an  original  holding,  paying  its  landgable.  When  the  seven  ceased 
to  pay  landgable,  the  eighth  which  still  paid  it  was  the  capital  messuage.  If  a 
holder  of  any  one  of  the  eight  messuages  had  enclosed  seven  others,  his  messuage 
would  have  become  '  capital  '  as  the  others  ceased  to  pay  landgable. 

*  As  at  Wycombe  where,  /.  Henry  HI,  Adam  Carter  granted  "  a  part  of  his 
capital  messuage  "  (H.  M.  C,  Rep.,  5,  p.  560). 

*  As  at  Leicester  where  in  1286  rent-hens  were  granted  from  "  the  chief  mes- 
suage which  once  was  W.  of  B.'s  "  (Bateson,  Records  of  Leicester,  i,  p.  389) ;  the  name 
of  the  former  holder  clings  to  the  place  just  as  it  does  to  many  a  homestead  in 
modern  days;   the  messuage  is  still  capital. 


BURGAGE  RENTS  79 

capital  messuages,  an  economic  condition  which  perhaps  is  only 
to  be  expected,  for  the  buyer  of  part  of  an  original  tenement 
would  naturally  prefer  to  get  it  unencumbered.  Also  he  might 
wish  to  raise  money  on  his  purchase  and  could  do  so  more  easily 
if  there  were  no  previous  burden  thereon.  If  the  capital  mes- 
suage gave  sufficient  security  the  rent-charge  would  thus  be 
thrown  back  on  it.^  During  the  later  part  of  our  period, 
and  in  London  at  an  early  date,  the  term  capital  messuage 
seems  to  have  another  meaning,  the  dwelling-house  of  one  who 
holds  and  leases  other  houses;  except  in  London,  however,  this 
is  alternative  to  and  not  exclusive  of  the  older  meaning.^  The 
chief  importance  of  the  capital  messuage  lies  in  its  greater  ten- 
dency to  inahenability  in  boroughs  of  restricted  devise,  its 
connection  with  dower,  and,  though  beyond  our  period,  in  its 
connection  with  the  parliamentary  franchise.^ 

^  See  Bateson,  Records  of  Leicester,  i,  p.  183.  The  capital  messuage  may  often 
have  been  more  valuable  than  the  average  tenement  and  thus  have  afforded  greater 
security  for  a  loan.  At  Scarborough  John  Ouhtred's  capital  messuage  was  worth 
40s.  a  year;  the  greatest  value  of  any  of  his  other  burgages  was  24s.  and  their 
average  value  about  5s.  (Brown,  Yorkshire  Inquisitions,  iii,  pp.  91-93;  the  5s.,  etc., 
are  rents,  but  not  burgage  rents). 

At  Norwich  temp.  Ed.  I  two  tenements  were  conveyed  by  various  holders  to  the 
Friars  Minors  (Minor  Brothers).  They  were  original  tenements  owing  each  a 
penny  landgable.  Two  burgesses  pledged  themselves  to  pay  this  gable  to  the 
farm,  and  each  placed  a  rent-charge  of  a  penny  on  his  capital  messuage  with  that 
object  (Stanley  v.  Mayor,  etc.,  f.  15);  in  this  case  it  seems  that,  when  a  tenement 
was  grasped  by  the  dead  hand,  it  escaped  every  financial  obligation.  Sometimes 
the  term  may  refer  to  size  alone:  "  one  capital  messuage  .  .  .  in  .  .  .  Norwich 
.  .  .   and    .  .  .  six  .  .  .  small  messuages  "  {ibid.,  f .  47). 

There  seems  to  have  been  a  desire  to  keep  a  capital  messuage  as  near  the  family 
as  possible.     See  Frost,  Hull,  p.  46,  note;  Swinden,  Yarmouth,  p.  804. 

2  See  C.  A.  D.,  i,  p.  193;  ibid.,  i,  p.  176, 19  Ed.  IV,  "  a  chief  tenement  with  close 
and  two  tenements  adjoining,"  both  in  London;  H.  M.  C,  Rep.,  11,  app.,  pt.  3, 
p.  161  (Lynn,  6  Henry  VI),  a  "  chief  tenement  [which]  has  different  tenements  .  .  . 
under  one  roof ,  pertaining  to  .  .  .  the  said  chief  tenement  ";  C. /.  if.,  Henry  VII, 
i,  p.  208,  "  a  capital  messuage  ...  in  the  suburbs  of  Colchester,  three  renters 
thereto  adjacent  ";  ibid.,  i,  p.  304,  t.  Henry  III  (London),  a  '  chief  house  '  with  thir- 
teen shops. 

'  See  Stubbs,  Constitutional  History  of  England  (1880),  iii,  p.  453. 


8o  BURGAGE  TENURE  IN  ENGLAND 

Rents  and  Sales  of  Messuages 

What  was  the  actual  worth  of  the  messuages  whose  land- 
gables,  when  they  paid  any,  seldom  exceeded  a  penny  or  two- 
pence, in  the  older  boroughs  at  least  ?  Unsatisfactorily  for  us, 
though  probably  not  for  him,  the  burgher  of  the  twelfth,  the 
thirteenth,  and  sometimes  later  centuries  seems  seldom  to  have 
transferred  a  tenement  without  retaining  a  perpetual  rent  in 
addition  to  a  sum  paid  down.  The  feudal  idea  of  holdership 
may  have  influenced  him,  or  he  may  have  wished  to  retain  the 
right  to  escheat,  a  possibility  of  some  value  in  boroughs  where 
freedom  of  alienation  was  restricted.  Where  the  rent  retained 
is  only  nominal,  as  a  rose,  a  clove,  or  an  arrow,  the  sum  paid 
down  may  be  taken  as  the  price  of  the  tenement,  but  in  such 
cases  the  records  often  forget  to  state  what  sum  was  paid,  or 
whether  anything  were  paid  at  all.  Records  of  sale  simple 
show  prices  varying  from  4I  marks  for  a  shop  in  Bath  to  £90 
for  a  messuage  in  London.  The  appended  illustrations  of  simple 
sale,  though  few,  show  how  disproportionate  a  ratio  existed 
between  the  value  of  a  tenement  and  its  landgable,  especially 
when  it  is  considered  that  probably  in  every  case  the  messuage 
in  question  was  only  a  fraction  of  the  original  tenement.^ 

^  The  facts  connected  with  one  of  the  Norwich  messuages  show  how  quickly 
realty  could  be  transferred  in  the  boroughs.  On  July  29,  J.  granted  it  to  Y.  for 
£40;  on  August  4,  Y.  granted  it  to  A.;  on  August  9,  A.  granted  it  to  J.,  the  original 
holder,  for  £42.  The  grant  of  a  tenement  for  3s.  at  I^ondon  is  quoted  to  show  how 
little  value  a  tenement  might  have;  that  at  Dartmouth,  made  by  a  chaplain's 
daughter,  is  too  small  to  be  representative.  The  terms  of  the  last  London  grant 
were  peculiar:  "  24s.  a  year  for  six  years  and  10  marks  a  year  for  the  following 
twenty-four  years." 

Records  of  grants  where  the  grantor  retained  a  rent  exist  in  large  numbers. 
Thus  in  1228  the  king  granted  an  escheated  tenement  in  London  toVVilliam Marshal, 
Earl  of  Pembroke,  and  the  carl  sold  the  house  almost  at  once  for  1 10  marks,  retain- 
ing a  rent  of  2s.  or  one  hat  {capellum}  of  peacock's  feathers;  the  chief  lord's  service 
of  8d.  was  saved  as  well  (C.  C.  R.,  i,  pp.  74,  79). 


BURGAGE  RENTS  8 1 

Borough  Sale  Price 

Bath,  c.  1230 4J  marks.^ 

Bridport,  t.  Edward  I    14  marks.^ 

Canterbury,  1402 100  marks.' 

Dartmouth,  t.  Edward  1 153.,  10  marks.* 

Hythe,  /.  Edward  III 10  marks.' 

Kenfig,  1270-79    2os.^ 

Leicester,  1298-99    £20.^ 

London,  1189-96 £90.* 

Do.,  17  Ed.  I 3s.» 

Do.,  19  Rich.  II   £7  4S.  +  240  marks^" 

Norwich 40  marks." 

Do.,  1287  £42.12 

Do.,  1313  13S.1* 

Reading,  19  Henry  VI £16." 

Do.,  20  Henry  VI £20.1' 

Ross,  1285-86 53s.  4d." 

Rye,  30  Ed.  I    6  marks." 

Do.,  5  Henry  V £7  los.'* 

Do.,  5  Ed.  II    7  marks.i^ 

Thombury,  i  Henry  VI    10  marks.^ 

Westmelne,  5  Henry  III 12  marks  a  year  for  life 

of  grantor.^i 
^  King  and  Watts,  Records  of  Bath,  p.  xvi. 
2  H.  M.  C,  Rep.,  6,  p.  481. 
'  Ibid.,  9,  pt.  I,  p.  169. 
*  Ibid.,  5,  pp.  599,  601. 
'  Ibid.,  6,  p.  512. 

^  Clark,  Cartae  Glamorg.,  iii,  p.  529. 
^  Bateson,  Records  of  Leicester,  i,  p.  395. 
8  C.  A.  D.,  i,  pp.  167-168. 
»  Ibid.,  i,  p.  187. 
10  H.  M.  C,  Rep.,  9,  pt.  I,  p.  7. 
"  Hudson  and  Tingey,  Records  of  Norwich,  i,  p.  257. 
^  Ibid.,  i,  p.  233. 
1^  Stanley  v.  Mayor,  etc.,  f.  31. 
^*  C.A.  D.,  i,  p.  67. 
"  Ibid.,  i,  p.  70. 
1*  Hore,  Wexford,  i,  p.  153. 
"  H.  M.  C,  Rep.,  5,  p.  503. 

18  Ibid.,  5,  p.  514. 

19  Ibid.,  5,  p.  505. 

20  C.  A.  D.,  i,  p.  105. 

21  Ihid.,  i,  p.  124.  "  J.  le  M.  undertakes ...  as  long  as  Marines  Uves  ...  to 
pay  him  12  marcs  yearly  .  .  .  ;  and  in  retxim  Marines  releases  to  le  M.  the  tene- 
ment he  held  of  him  for  hfe." 


82  BURGAGE  TENURE  IN  ENGLAND 

Perhaps  a  clearer  idea  of  the  discrepancy  may  be  obtained 
from  a  comparison  of  the  burgage  rents  with  the  rents  in  the 
boroughs.  Early  records  of  rents  simple  are  not  so  abundant 
as  might  be  supposed,  for  till  a  comparatively  late  period  the 
burgess  seems  to  have  had  a  great  aversion  to  this  sort  of  rent, 
though  he  regarded  it  more  favorably  than  he  did  a  sale  simple. 
He  usually  wanted  something  beforehand,  or  he  transferred 
under  feudal  forms,  and  the  tenement  so  granted  was  commonly 
inherited  by  the  grantee's  heirs.  Furthermore  the  earhest 
rents  were  not  rents  of  houses  as  the  term  is  used  today,  but 
rents  paid  out  of  houses.  Such  rents  were  usually  heritable, 
perpetual,  and  subjects  of  commerce  in  themselves.^  Rents 
simple  can  be  found  in  the  following  list  from  6d.  to  £4;  perhaps 
an  average  would  lie  between  5s.  and  los.^  The  list  is  intended 
to  be  illustrative,  but  not  exhaustive;  it  could  easily  be  greatly 
lengthened. 

Borough  Rent  Simple 

Basingstoke los.' 

Berwick,  1333 33s.  4d.* 

Bridgwater,  4  Henry  VII    average  los.* 

Bridport,  53  Henry  III i6d.,  8s.' 

Do.,  19  Henry  VI 13s.  4d.^ 

*  The  same  conditions  held  in  German  towns.  See  Arnold,  Geschichie  des 
Eigenthums,  2d  section,  especially  p.  57. 

*  A  rent  of  12  marks  seems  excessive  at  such  a  town  as  Westmelne:  there  is 
possibly  confusion  in  the  record,  or  more  than  one  messuage  is  included.  At 
Leicester  nearly  every  house  paid  capons  or  hens  in  addition  to  money;  some  paid 
hens  alone  (see  Bateson,  Records  of  Leicester,  i,  pp.  381-396;  ii,  pp.  200-203).  The 
1 2d.  rent  at  New  Ross  is  as  low  as  rents  went  there.  It  was  due  from  a  school- 
house,  but  the  earl  had  stored  his  hay  therein,  gaining  a  barn  but  losing  his  rent. 
The  rent  of  10s.  8d.  at  Oxford  was  not  inclusive  of  all  the  consideration;  "  meat 
and  drink  .  .  .  whensover  she  shall  require  it  "  must  be  found  the  lessor. 

Where  in  the  above  list  a  single  rent  is  given  it  is  sometimes  the  only  rent  simple 
to  be  found  in  the  sources  quoted,  but  in  most  of  the  illustrations  it  is  an  average 
rent.  When  several  are  given  for  one  town  they  are  the  lowest  and  the  highest, 
with  at  times  one  or  more  to  show  the  average.  The  differences  were  great  between 
different  towns,  and  between  rents  in  the  same  town,  differences  which  were  not 
always  due  to  the  desirability  or  size  (for  size  of  the  messuage  see  p.  100)  of  the 
tenements,  but  in  part  at  least  to  the  fact  that  many  of  the  leases  were  heritable, 
especially  those  made  by  the  monasteries;  the  dead  hand  was  sure  but  it  was  slow. 

'  R.  II.,  ii,  p.  220.  •  C.  I.  M.,  i,  p.  222. 

*  Scott,  Berwick,  p.  251.  ^  C  A.  D.,  i,  p.  522. 
»  C.  /.  M.,  Henry  VII,  i,  p.  165. 


BURGAGE  RENTS  83 

Borough  Rent  Simple 

Bristol,  7  Henry  VII   los.^ 

Caermarthen,  1275 £6.^ 

Cambridge,  1386 20s.' 

Carlisle,  i  Henry  VII 6s.  8d.  for  3  tenements/ 

Colchester,  /.  Ed.  Ill     2d.H5s.  8d.' 

Coventry,  5  Ed.  Ill     40s.' 

Dover,  1 286 3s.  6d.' 

Dublin,  1 280-90 6d.-40s.' 

Durham,  1360    4s.' 

Gloucester,  c.  1 200 26^d.^'' 

Do.,  c.  1230 5s.^^ 

Do.,  1455  6s.  8d.-33s.  /^^.^ 

Haverfordwest,  36  Henry  VI     2s.-6s.  8d.*^ 

Hereford,  8  Ed.  II   Ss." 

Do.,  13 19  3d.  a  week.^" 

Ipswich,  3  Henry  VII       40s." 

Kingston-on-Thames 8d.-8s." 

Leicester,  1289-90      6s.^ 

Liverpool,  1346     6s.  8d.  (f  of  a  tenement)." 

Do.,  22  Ed.  Ill     4S.20 

London,  2  John 53.^^ 

Do.,  /.  Ed.  I £2,  £5.22 

Do.,  18  Ed.  I 6s.,  los.  4d.,  etc.^ 

Do.,  6  Ed.  II 13s.  4d.2* 

Do.,  2  Henry  VII     £6  for  3  messuages.^^ 

^  C.  /.  M.,  Henry  VII,  i,  p.  294. 

2  Daniel-Tyssen,  Charters  of  Carmarthen,  p.  75. 

3  H.  M.  C,  Rep.,  i,  p.  81.  *  C.  /.  M.,  Henry  VII,  i,  p.  71. 

*  Benham,  Red  Parchment  Book  of  Colchester,  pp.  70-71. 
«  H.  M.  C,  Rep.,  IS,  app.,  pt.  10,  p.  137. 

^  Statham,  Dover  Charters,  p.  29. 

*  Gilbert,  Records  of  Dublin,  i,  pp.  100-106. 
^  Brand,  Newcastle,  i,  p.  216. 

1"  Stevenson,  Calendar  of  the  Records  of  Gloucester,  p.  82. 

"  Ibid.,  p.  149. 

1^  Cole,  Rental  of  the  Houses  in  Gloucester,  pp.  9  et  seq. 

13  C.  A.  D.,  iii,  p.  531.  "  Madox,  Firma  Burgi,  p.  257. 

1*  H.  M.  C,  Rep.,  13,  app.,  pt.  4,  p.  296. 

16  C.  /.  M.,  Henry  VII,  i,  p.  118. 

"  Roots,  Charters  of  Kingston  upon  Thames,  p.  115. 

1*  Bateson,  Records  of  Leicester,  i,  p.  390. 

18  Picton,  Records  of  Liverpool,  i,  p.  12. 

*  Baines,  Liverpool,  p.  154. 

21  Plac.  Westmon.  Abbr.,  p.  27,  rot.  13,  dorse. 

22  C.  I.  M.,  ii,  p.  304.  ^*  C.A.  D.,  ii,  p.  554. 

23  Ibid.,  ii,  p.  478.  25  C.  I.  M.,  Henry  VII,  i,  p.  104. 


84  BURGAGE  TENURE  IN  ENGLAND 

Borough  Rent  Simple 

Lynn,  3  Rich.  I 75s.  7jd.' 

Do.,  6  Henry  VI 20s.,  6s.  8d.* 

Maldon is.  6d.* 

Manchester,  i6th  cent 8s.  pd.,  8s.  6d.* 

Morpeth,  1 296 6s.' 

Newcastle,  41  Ed.  Ill   £5  for  3  tenements.* 

Do.,  1470 8s.^ 

Do.,  31  Henry  VIII  5s.,  i8s.,  etc.* 

New  Ross,  1 280-81    IS.,  4s.' 

Norwich,  28  Ed.  I    los.  for  2  tenements." 

Oxford,  1279 SS.-44S." 

Do.,  47  Ed.  Ill     los.  8d." 

Plymouth,  7  Henry  VII    i  is.  for  2  tenements." 

Plympton,  4  Henry  VII    6s.  8d.  for  2  tenements." 

Rye,  28  Ed.  I    Ss." 

St.  Ives,  10  Ed.  II   6s.  8d." 

Scarborough,  1 279   9s." 

Do.,  1298  3S.-17S." 

Shaftesbury,  1360 13s.  4d." 

Southampton,  45  Henry  III     8s.  8d.*° 

Westmelne,  49  Henry  III 12  marks.'^ 

Whitby      5s.  6d.  (i  of  a  tenement).** 

Winchester,  1 103-15    £4  6s.*' 

Do.,  6  Henry  VII     6s.  for  2  tenements." 

Woodstock,  6  Henry  VII    8s.  6d  » 

Worcester,  35  Ed.  I iSS.  2d.* 

Wycombe,  34  Henry  VI    6s.  6d." 

York,  1275 4  marks.^ 

Do.,  1296  2s.  4d.^ 

1  Parkin,  Lynn,  p.  145. 

*  H.  M.  C,  Rep.,  II,  app.,  pt.  3,  p.  161. 
'  C.  P.  R.,  a.  1401-05,  p.  308. 

*  Court  Leet  Records  of  Manchester,  i,  p.  204. 

"  H.  M.  C,  Rep.,  6,  p.  528.  '»  R.  II.,  ii,  p.  797. 

*  Brand,  Newcastle,  i,  p.  75.  "  H.  M.  C,  Rep.,  4,  p.  445. 

^  Ibid.,  i,  p.  226.  "  C.  /.  M.,  Henry  VII,  i,  p.  290. 

*  Ibid.,  i,  pp.  407-409.  "  C.  I.  M.,  Henry  VII,  i,  p.  195. 
»  Hore,  Wexford,  i,  p.  143.  "  H.  M.  C,  Rep.,  5,  p.  503. 

'"  Stanley  v.  Mayor,  etc.,  f.  16.  **  C.  A.  D.,  i,  p.  136. 

"  R.  II.,  i,  p.  131. 

"  Brown,  Yorkshire  Inquisitions,  iii,  pp.  91-93. 

"  Mayo,  Shaftesbury,  p.  37.  "  C.  I.  M.,  Henry  VII,  i,  p.  279. 

»  C.  /.  M.,  i,  p.  135.  »  H.  M.  C,  Rep.,  8,  p.  638. 

"  C.  A.  D.,  i,  p.  124.  "  Ibid.,  5,  p.  564. 

"  Atkinson,  Whitby,  p.  174.  ^  R.  II.,  i,  p.  119. 

"  D.  B.,  iv,  Liber  Winton',  ff.  3,  7.  »  C.  P.  R.,  a.  1296,  p.  208. 

"  C.  /.  A/.,  Henry  VII,  i,  p.  255. 


BURGAGE  RENTS  85 

Some  of  the  rents  in  the  list  are  the  sum  of  four  or  five  different 
rents  paid  to  as  many  receivers  thereof.  Gifts  of  rents  to  relig- 
ious foundations  were  frequent,  too  frequent;  every  important 
borough  in  England  seems  to  have  had  many  tenements  therein 
which  were  burdened  with  rents  to  the  religiosi,  though  the 
burden  Hghtened  as  values  rose.^  Parallel  conditions  existed 
in  the  cities  of  Germany,  with  this  difference,  however,  that  the 
German  burgher's  '  gift,'  as  is  shown  by  cases  at  Basel  and  else- 
where, was  usually  the  interest  on  a  loan  made  to  him  by  the 
Stiftung;  the  English  burgess's  gift  was  commonly  the  outcome 
of  credulity  and  superstition.  Not  always,  however,  as  the 
following  parallel  of  the  Basel  practice  shows: — 1260-70, 
"  grant  by  P.  C.  to  R.  D.,  vicar  of  Southstoke,  in  consideration 
of  12  marks  in  pennies,  of  a  perpetual  yearly  rent  of  12s.,  payable 
quarterly  out  of  the  house  which  T.  S.  held  of  him  in  Bath."  ^ 
Such  a  transaction  is  uncommon  in  the  English  records.  Money 
played  a  less  important  part  in  the  agricultural  English  boroughs 
than  in  the  commercial  Rhine  towns.  The  grant  of  the  quota- 
tion shows  a  lower  rate  of  interest,  for  this  case  at  least,  at  Bath 
than  at  Basel.  In  the  former  it  was  i  to  13^,  in  the  latter  i  to 
12^,  though  the  former  ratio  does  not  necessarily  show  the 
ruUng  rate  of  interest  in  the  EngKsh  city.  When  many  rents 
were  bought  and  sold  in  purely  commercial  transactions,  a 
common  practice  in  the  Rhine  towns,  the  rates  of  interest  which 
such  loans  must  bear  did  not  vary  greatly  in  amount.  The 
seller  of  a  perpetual  rent  was  really  a  borrower  of  capital;  the 
buyer  was  an  investor.  The  matter  was  of  importance  to 
burgage  tenure  because  the  low  landgable  and  its  stability, 
together  with  the  mobihty  of  the  tenement,  made  the  burgess's 
credit  good.* 

Perhaps  the  commonest  fashion  of  transfer  in  the  early  part 
of  our  period  was,  as  mentioned  before,  to  combine  sale  (a  sum 

*  A  heavier  burden,  not  only  on  national  but  on  urban  finances,  lay  in  the 
mediate  or  immediate  ownership  of  burghal  property  by  religious  foundations 
(see  Gross,  "  Mortmain  in  Mediaeval  Boroughs,"  in  American  Historical  Review, 
July,  1907). 

^  King  and  Watts,  Municipal  Records  of  Bath,  p.  xvii. 
2  Arnold,  Geschichte  des  Eigentums,  pp.  117,  245. 

*  Arnold  in  his  Geschichte  des  Eigentums  has  treated  this  matter  in  detail. 


86 


BURGAGE  TENURE  IN  ENGLAND 


paid  *  praemanibus  ')  and  rent.  Such  rents  bore  no  constant 
proportion  to  the  amounts  paid  beforehand,  and  even  allowing 
for  the  greater  purchasing  power  of  money  at  that  time,  they 
were  often  insignificant.  On  the  other  hand  many  cases  can 
be  cited  where  this  rent  was  equal  to  and  sometimes  greater 
than  the  amount  paid  '  praemanibus.'  Nor  were  the  retained 
rents  always  in  money;  hens  and  arrows,  gloves  and  roses, 
spurs  and  cloves,  pepper  and  pigeons,^  and  other  articles  equally 
incongruous  served  to  satisfy  the  terms  of  many  grants.  Rec- 
ords of  transfer  combining  sale  and  rent  show  prices  paid  from 
20S.  to  no  marks,  with  an  average  of  less  than  50s.;  rents  re- 
tained with  these  vary  from  2d.  to  one  mark,  most  of  them 
between  is.  and  3S.'^ 

'  H.  M.  C,  Rep.,  9,  pt.  I,  p.  47,  London:  a  rent  of  "  two  doves,  for  the  most 
part  white,  shut  up  in  a  wooden  box." 

*  The  order  in  the  following  list  is  (i)  the  borough,  (2)  price  '  praemanibus,' 
(3)  retained  rent,  (4)  source: 


Bridgwater,  ?  /.  Ed.  I 

20S.  and  a  ] 

pig  IS. 

H.  M.C., /?e^,  3,  p.  311. 

Cambridge 

7s. 

2S. 

Ibid.,  I,  p.  70. 

Dartmouth,  /.  Ed.  I 

2S. 

6d. 

Ibid.,  5,  p.  599. 

Dartmouth,  /.  Ed.  I 

20s. 

IS. 

Ibid.,  5,  p.  599, 

Dartmouth,  /.  Ed.  I 

33s.  4d. 

IS. 

Ibid.,  5,  p.  599. 

Dartmouth,  t.  Ed.  I 

21  marks 

ipr. 

gloves 

Ibid.,  5,  p.  600. 

Exeter,  17  Ed.  II 

? 

60s.  after  29  yrs 

.  Ibid.,  5,  p.  605. 

Ipswich 

40s. 

3S. 

C.  A.D.,  ii,  p.  176. 

Kenfig,  1270-79 

20s. 

2d. 

Clark,  Cartae  Glamor g.,  iii, 
P-  529- 

London, 1228 

no  marks 

2S. 

C.  C.  R.,  i,  p.  79. 

London,  c.  1250 

60  marks 

IS. 

C.  C.  R.,  i,  p.  368. 

London,  r.  1267 

80  marks 

13s. 

5d. 

C.C.  R.,  ii,  p.  77. 

London 

36  marks 

id. 

H.M.C.,/?c/».,9,pt.  I, p.  10. 

Oxford 

20s. 

4S. 

Ibid.,  4,  p.  445. 

Rye,  1258 

13s.  6d. 

Sd. 

Ibid.,  5,  p.  503. 

Rye,  34  Ed.  I 

40s. 

8s. 

Ibid.,  5,  p.  504. 

Wallingford,  /.  Henry  ] 

[II 

40s. 

ipr 

.  gloves 

Hedges,    Wallingford,    i, 
P-  342. 

Wallingford,  /.  Henry 

III 

lOOS. 

I  clove 

Ibid.,  i,  p.  344. 

Wallingford,  /.  Henry 

III 

40s. 

6s. 

Ibid.,  \,  p.  345. 

Wells,  c.  1 200 

51S.  and'  a 

golden 

fermail ' 

I  OS. 

H.  M.  C,  Rep.,  3,  p.  360. 

Worcester,  /.  Ed.  I 

£5 

3S.  6d. 

Ibid.,  8,  p.  638. 

Wycombe,  /.  Ed.  I 

40s. 

3S. 

Ibid.,  s,  p.  559. 

At  Bridgwater  the  grantor's  wife  opposed  the  sale, 
her  objections. 


The  grantee's  pig  removed 


BURGAGE  RENTS  87 

The  subject  of  hens  as  a  part  or  the  whole  of  rents  was  once 
considered  to  be  of  some  significance  in  connection  with  theories 
of  the  origin  of  free  urban  tenure.^  Such  rents  existed  at  widely 
separated  boroughs  in  England;  Leicester  is  the  town  where 
they  most  abounded.^  At  Tutbury  and  Uttoxeter,  erstwhile 
manors,  the  charter  (or  customal)  states  that  "  the  burgesses 
.  .  .  shall  pay  noe  .  .  .  rent  hens  "  ^  but  this  refers  to  the 
rents  of  assize  or  landgables.  The  boroughs  whence  the  records 
come  extend  from  the  channel  up  the  east  coast  and  into  Staf- 
fordshire. Leicester  was,  no  doubt,  mainly  a  farming  community, 
but  Dover  was  not,  nor  was  Ipswich.  This  rendering  of  hens, 
however,  is  certainly  nothing  but  a  survival  of  what  was  once  a 
convenient  method  of  paying  rent. 

Other  things  than  hens  figured  in  rents  in  the  boroughs,  partic- 
ularly pepper  and  cummin,  the  receivers  of  such  rents  being 
usually  ecclesiastics  •*  and  the  amount  of  either  condiment  due 
from  one  tenement  commonly  one  pound, ^^  though  in  1279  a 
tenement  in  Cambridge  rendered  a  penny,  a  rose,  and  a  grain  of 
pepper.^     The  worth  of  a  pound  of  cummin  seems  to  have  varied 

^  Arnold  based  his  theory  of '  domainial '  origin  mainly  on  hens;  see  Geschichte 
des  Eigentums,  p.  35.  Keutgen  shows  them  to  be  merely  a  convenient  form  of 
rent;  see  Deutsche  Stadtverfassung,  p.  120. 

^  Bateson,  Records  of  Leicester,  i,  p.  183:  Isabella  "  remitted  and  granted  and 
quit-claimed  for  ever  .  .  .  3d.  and  a  hen  of  yearly  rent-charge  which  .  .  .  W.  .  .  . 
was  wont  to  render  to  her  from  his  chief  messuage."  See  ibid.,  i,  p.  383 :  6d.  and  2 
capons,  a.  1250;  ibid.,  i,  p.  385:  one  hen  or  id.  These  Leicester  records  so  teem 
with  hens  that  one  looks  for  eggs  in  the  rent  (they  were  common  in  manorial  ser- 
vices). Most  of  the  rents  in  Leicester  contain  cocks,  capons,  or  hens,  and  some 
consist  of  hens  alone. 

Hen  rents  are  found  in  a  few  instances  at  Hythe  (H.  M.  C,  Kep.,  6,  p.  513, 
a.  1334),  Dover  (Statham,  Dover  Charters,  p.  51:  "  2S.  and  6d.  and  one  hen  of  free 
and  perpetual  annual  rent,"  a.  1342),  Southampton  (H.  M.  C,  Rep.,  6,  p.  553, 
c.  1273),  Nottingham  (Stevenson,  Records  of  Nottingham,  p.  366),  and  Ipswich 
(C.  A.  D.,  ii,  p.  222:  "  gd.  and  a  cock  and  hen  ";  ibid.,  iii,  p.  3).  Elsewhere  than  at 
Leicester  rents  of  this  sort  are  commonly  payable  to  monasteries.  This  may  be 
due  to  old  custom  or  to  the  monks'  fondness  for  poultry. 

^  Mosley,  Tutbury,  pp.  367-368. 

*  Gilbert,  Records  of  Dublin,  i,  p.  94,  a.  1261.  St.  Mary's  Abbey  rented  one  of 
its  messuages  in  Dublin  for  money  and  a  pound  of  cummin. 

C.  /.  M.,  ii,  p.  478,  a  poimd  of  cummin  among  the  bishop  of  Ely's  rents  in  London 
in  18  Ed.  I.  —  In  C.  A.  D.,  i,  p.  417,  6  Ed.  Ill,  the  same  term  occurs. 

*  Sometimes  half  a  pound.     C.  A.  D.,  i,  p.  186  (5  Ed.  I,  London). 
«  R.  H.,  ii,  p.  370. 


88  BURGAGE  TENURE  IN  ENGLAND 

between  a  penny  and  fivepence ; '  a  pound  of  pepper  was  of  greater 
value.*  Gloves  appeared  frequently  as  parts  of  rents,  white 
gloves  as  a  rule,  or  in  their  place  a  penny ,^  though  in  Coventry 
a  farthing  was  the  price.'*  In  Oxford  and  London,  gilt  spurs, 
whose  value  was  set  at  sixpence,  were  often  rendered  as  rent.* 

In  all  these  cases  the  nature  of  the  annual  return  is  easily 
understood.  Spurs,  gloves,  and  that  sort  of  thing  were  useful 
and  valuable,  and  the  grantee  commonly  had  the  option  of  ren- 
dering money  in  their  stead.  A  more  frequent  form  of  non- 
money  rent,  however,  and  one  not  easy  to  explain  on  a  basis  of 
common  sense,  was  a  rose  or  a  clove  ('  clavum  gariophiji  '). 
A  '  red  rose  on  St.  John's  day  '  was  not  of  much  worth,  and 
usually  it  was  the  only  rent  which  the  grantor  retained;  such 
rents  were  perhaps  more  the  mode  in  London  than  in  the  little 
farming  boroughs.  Undoubtedly  one  reason  for  asking  nothing 
but  a  rose  was  the  wish  really  to  sell  or  give  a  tenement  while 
still  retaining  its  lordship,  but  a  nominal  money-rent  would 
have  answered  as  well.^  As  rents  in  terms  of  roses  seem  rare 
in  the  country,'  it  appears  that  this  particular  sort  of  rent  is 

'  C.  C.  R.,  ii,  p.  77,  a.  1267,  a  rent  of  a  pound  of  cummin  might  be  commuted 
for  2d.  in  London;  ibid.,  ii,  p.  169,  a.  1270,  for  id.  at  Newcastle.  Sometimes  a 
pound  of  cummin  was  valued  at  4d.  (C.  A.  D.,  ii,  p.  40). 

^  C.  A.  D.,  iii,  p.  266:  7d. 

'  Gilbert,  Records  of  Dublin,  i,  p.  97,  a.  1264;  Clark,  Curiae  Glamorg.,  i,  p.  202, 
a.  1305. 

*  H.  M.  C,  Rep.,  15,  app.,  pt.  10,  p.  129.  Glove  and  pepper  rents,  sometimes 
alone  but  commonly  in  connection  with  money  rents,  seem  to  occur  oftenest  at 
Southampton  (C.  A.  D.,  ii,  p.  386),  but  they  can  be  found  all  over  England,  or  at 
least  as  far  north  as  York  (VViddrington,  Analeda  Eboracefisia,  p.  253). 

*  C.  C.  R.,  i,  pp.  67-68,  a.  1228.  In  one  instance  the  spurs  were  due  from 
Hubert  dc  Burgh  to  be  paid  out  of  a  tenement  in  London  which  the  king  had  given 
him;   in  another  the  payment  was  due  from  a  citizen. 

*  Even  communities  took  rose-rents.  At  Ipswich  in  1336  Horswade  mill  was 
burned  and  the  miller's  son  undertook  to  rebuild  it  at  his  own  charge.  The  towns- 
men then  gave  him  a  lease  of  it  for  eight  years  along  with  their  meadow  called 
Oldenholm,  he  to  render  "  a  redd  rose  at  Midsummer  "  (Bacon,  Annalls  of  I  psuriche, 
p.  62).     An  car  of  barley  would  seem  more  appropriate. 

'  Bracton  writes  of  services  of  gloves,  wax,  pepper,  cummin,  sandals,  etc. 
{De  Lcgihui,  i,  p.  278)  as  quite  common  in  the  country,  but  neither  he  nor  Britton 
mentions  roses.  See,  however,  Clark,  Carlae  Glamorg.,  i,  pp.  153,  179  ("  unam 
rosam  in  mcnse  Junii  "),  185,  204. 

At  Mannheim,  Pennsylvania,  a  German  community,  in  1772,  a  burgess  granted 
land  to  a  church  for  a  perpetual  yearly  rent  of  one  red  rose  in  June,  if  demanded. 


BURGAGE  RENTS  89 

due,  not  to  imitation  of  feudal  custom,  but  to  the  well-known 
poetic  grace  and  romantic  nature  of  the  mediaeval  English 
burgess. 

These  rents  were  commonly  heritable  and  perpetual,  and  those 
who  paid  them  were  consequently  freeholders.  There  were, 
however,  in  addition  to  these  and  tenants  for  life,  tenants  of 
other  sorts,  —  on  long  lease,  at  will,  in  remainder,  by  '  courtesy 
of  England.'  ^  Records  of  these  modern  methods  of  leasing  are 
scanty  in  the  early  part  of  our  period,  perhaps  the  first  definite 
reference  thereto  being  at  Winchester .^  In  some  cases  borough 
customals  or  charters  recognized  the  right  to  lease,  as  at  Cardiff,' 
Leeds,*  Bakewell,^  and  Manchester.^  These  places,  however,  are 
boroughs  of  late  formation  and  merely  mention  in  their  charters 
what  had  the  sanction  of  long  use  in  the  important  towns.'' 

During  the  twelfth  and  thirteenth  centuries  grants  were  many 
and  leases  few,*  with  the  fourteenth  century  leases  increased, 
and  at  the  close  of  the  middle  ages  they  seem  to  predominate 
over  other  forms  of  transfer.^  Yet  all  through  the  middle  ages 
there  appears  to  have  been  Httle  leasing  for  short  periods,  though 
London  especially,  in  this  as  in  other  conditions  which  approach 

^  The  tenement  which  a  wife  brings  at  marriage  remains  to  the  husband  for  his 
life  if  the  wife  should  die  before  him,  a  child  having  been  born  of  the  marriage. 
See  Hudson  and  Tingey,  Records  of  Norwich,  i,  p.  156,  "  according  to  the  courtesy 
and  custom  of  the  realm  and  this  city  ";  Markham,  Liber  Custumarum,  p.  22, 
Northampton;  C.  I.  M.,  Henry  VII,  i,  p.  382,  London. 

2  D.  B.,  iv,  Liber  Winton',  f.  9:  "  G.  clericus  tenet  .  .  .  ii  mansuras  de  lessam  "; 
this  dififers  from  a  grant  with  a  rent  in  that  the  tenements  are  not  held  by  the 
indweller. 

^  Matthews,  Cardiff  Records,  i,  p.  12.  A  burgess  who  had  two  burgages  might 
lease  one. 

^  Wardell,  Leeds,  app.,  p.  iv.     The  same  privilege  as  at  Cardiff. 

^  H.  M.  C,  Duke  of  Rutland,  iv,  p.  41,  charter  in  1286. 

^  Tait,  Mediaeval  Manchester,  p.  66,  charter  in  1301:  "  quilibet  burgensis  potest 
tradere  burgagium." 

''  At  Norwich  a  clause  in  the  customal  forbade  a  lessee  to  sell  (Hudson  and 
Tingey,  Records  of  Norwich,  i,  p.  161):  the  lease  in  this  case  must  have  been  for  a 
long  term. 

*  Records  of  leasing  are  abundant  in  such  of  the  town  archives  as  have  been 
transcribed,  the  Calendars  of  Inquisitiones  post  mortem,  etc. 

*  Of  the  earlier  leases  some  were  in  perpetuity,  as  at  Dublin  (Gilbert,  Records  of 
Dublin,  i,  p.  103,  a.  1284);  some  were  for  terms  of  years,  some  for  three  lives,  as 
at  Bath  (King  and  Watts,  Municipal  Records  of  Bath,  p.  xv,  a.  1336). 


90  BURGAGE  TENURE  IN  ENGLAND 

modernism,  formed  a  marked  exception.^  Records  of  leases 
for  short  terms  of  years  are  rare,^  but  whether  the  leases  were  as 
rare  as  the  records  may  be  questioned.  Many  leases  may  have 
been  effected  verbally;  in  such  cases  evidence  of  their  existence 
would  be  preserved  only  through  ulterior  circumstances,  especially 
those  which  called  for  inquisitions  concerning  real  property.  Such 
a  proceeding  at  Scarborough  illustrates  this  possibility,  perhaps 
too  well,  for  it  seems  exceptional.'  The  importance  of  this  part 
of  our  subject  lies  in  the  fact  that  leasing  as  distinguished  from 
holding  had  the  sanction  of  law  in  the  boroughs  before  its  recog- 
nition by  the  land  law  of  the  country  at  large.* 

'  See  Riley,  Munimenta  Gildhdlae,  i,  pp.  xxxvii  f.  Early  in  the  fourteenth  cen- 
tury houses  for  letting,  and  '  flats  '  at  that,  were  fairly  numerous.  Their  average 
rent  was  about  40s.  a  year.  When  the  rent  was  40s.  or  lower  three  months'  notice 
was  required  from  either  landlord  or  tenant.  When  the  rent  exceeded  this  amount 
the  notice  was  six  months. 

Possibly  the  tenements  which  formed  a  subject  of  inquiry  in  5  Henry  VII 
(C.  /.  M.,  Henry  VII,  i,  p.  235)  were  of  this  sort;  they  were  each  worth  40s.  to  60s. 
"  yearly,  when  let."  At  Hereford  one  tenement  was  let  for  3d.  a  week  (H.  M.  C, 
Rep.,  13,  app.,  pt.  4,  p.  296). 

^  The  Appendixes  to  the  H.  M.  C.  Reports  contain  a  comparatively  small 
number. 

'  Brown,  Yorkshire  Inquisitions,  iii,  pp.  91-93,  a.  1298.  A  burgess  of  Scarbor- 
ough had  free  tenants  at  7s.,  etc.,  and  also  tenants  at  will  who  held  burgages  at 
IS.  6d.,  9s.,  2S.,  etc.,  to  the  number  of  20  or  more.  The  '  free  tenants  '  were  free- 
holders, the  tenants  at  will  might  be  evicted  by  the  landlord  at  his  will  or  might 
leave  at  their  own. 

*  The  '  termor  '  of  the  country  had  no  legal  recognition  till  about  1240,  when 
the  writ  qttare  ejecil  infra  terminum  made  its  appearance.  There  was  no  Assize 
of  Novel  Disseisin  for  a  termor;  he  was  never  seized,  he  held  no  free  tenement. 

In  a  devise  of  1485  at  Colchester  occurs  the  phrase  "  tenement  .  .  .  with  the 
rentar  attached  to  the  same"  (Ik-nham,  Red  Paper  Book  of  Colchester,  p.  102); 
two  other  '  rentars,'  "  which  .  .  .  John  Best  inhabited  and  occupied  "  were  de- 
vised in  the  same  will.  '  Three  renters  adjacent  to  '  another  messuage  in  the 
same  place  are  s^xaken  of  in  5  Henr>'  \II  (C.  /.  M  ,  Henry  VII,  i,  p.  208).  These 
'  renters  '  may  be  houses  for  rent.  Du  Cange  gives  rentar  =  rentier,  but  in  modern 
French  the  latter  means  a  holder  of  the  nation's  bonds. 

There  were  slight  restrictions  on  leasing  in  a  few  boroughs,  applicable,  however, 
often  to  only  certain  messuages  in  any  one  place.  At  Cardiff  (Matthews,  Cardiff 
Records,  i,  p.  12),  and  Leeds  (Wardcil,  Leeds,  app.,  p.  iv)  it  seems  probable  that  a 
burgess  was  not  su[){K)scd  to  lease  unless  he  had  more  than  one  messuage.  At 
Dunheved  tenants  of  the  town  must  get  permission  to  sublet  (Peter,  iMunccston, 
p.  174).  See  also  Clilbert,  Records  of  Dublin,  i,  pp.  103,  106.  At  Rhuddlan  letting 
"  is  said  to  have  been  forbidden  "  (Tait,  Mediaeval  Manchester,  p.  69).  See,  for 
conditions  as  to  leasing  at  Northampton,  Markham,  Liber  Custutnarutn,  p.  25, 


BURGAGE  RENTS  9 1 

It  seems  a  matter  of  course  to  suppose  that  a  granted  rent  was 
wholly  the  grantee's,  but  the  records  of  such  grants,  particularly 
those  of  an  early  date,  show  that  he  often  got  only  a  part,  and 
sometimes  a  very  small  part,  of  such  a  rent,  the  rest  going  to 
others,  especially  the  religiosi.  After  the  passage  of  the  act 
De  Viris  Religiosis  in  1279,  grants  of  rents,  out  of  which  second 
rents  practically  equal  to  the  first  rent  must  be  paid  to  an  abbey 
or  a  church,  increased  in  number,  though  the  grantor's  relations 
did  not  always  pass  unnoticed.  No  matter  where  paid  these 
'  rent-charges  '  form  a  very  important  feature  in  the  economic 
history  of  the  boroughs.  They  were  a  subject  of  traffic  as  well 
as  the  tenements  from  which  they  were  paid,  and  afforded  on  a 
small  though  nimble  scale  a  sort  of  negotiable  securities,  subject, 
however,  to  the  same  conditions  which  governed  the  transfer 
of  realty  in  any  particular  borough.  ^ 

It  has  been  shown  that  a  large  amount  of  real  property  in  the 
boroughs  passed  into  the  king's  hand,  a  small  part  as  escheat 
but  a  large  amount  as  forfeiture.  The  usual  practice  of  the 
central  government  was  to  give  or  sell  the  tenements  thus  ac- 
quired, unless  there  was  some  agreement  concerning  them 
between  the  king  and  the  borough.  When  the  king  granted 
them,  however,  he  usually  retained  a  rent  and  sometimes  he 
retained  and  rented  them,  thereby  becoming  a  landlord  in  the 
borough.  The  town  baiUffs  commonly  acted  as  his  agents  in 
such  cases,  collecting  the  rents  and  accounting  for  them  at  the 
Exchequer  and  not  in  the  Firma  Burgi.^ 

1  It  is  hardly  needful  to  add  that  these  rents  were  chargeable  only  on  perpetual 
rents  or  long-term  leases.  Many  of  them  were  dry  rents  (reddihis  sicci,  rents- 
seeks)  on  which  no  distress  might  be  levied. 

Frequent  as  such  rent-charges  are  in  many  English  boroughs,  they  are  very 
unequal  in  number  to  corresponding  grants  in  the  towns  of  the  upper  Rhine.  See 
Arnold,  Geschichte  des  Eigeniums,  3d  section. 

2  At  Berwick  in  1333  the  chamberlain  (Berwick  had  just  been  conquered  from 
the  Scots)  accounted  for  about  £60  of  rent  from  "  divers  tenements  escheated  to 
the  King  "  (Scott,  Berwick,  pp.  249-250);  at  Liverpool  in  1346  the  bailiffs  "  an- 
swered for  6s.  8d.  of  rent  of  three  parts  of  a  burgage  which  fell  into  the  king's  hand 
by  the  death  of  ...  "  (Picton,  Records  of  Liverpool,  i,  p.  12).  In  12  Ed.  IV  the 
bailiffs  of  Winchester  "  debent  viii  d.  per  annum  de  redditu  .  .  .  domorum  quae 
fuerunt  Judaeorum  "  (Madox,  Firma  Burgi,  p.  19);    in  1280-81  the  Provost  of 


92  BURGAGE  TENURE  IN  ENGLAND 

The  Nature  of  the  Burgage 

What  was  this  messuage  or  burgage  whose  nature  so  far  we 
have  assumed  to  be  well  known  ?  Was  the  term  burgage  or  its 
equivalent  appHed  to  the  land,  or  to  the  house  thereon,  or  to 
both  ?  A  definite  answer  is  hard  to  give,  so  much  depends 
on  time  and  place;  as  long  as  the  mediaeval  English  burgess 
knew  very  well  what  a  burgage  was,  why  should  he  waste  thought 
on  abstractions  or  on  logical  definition  ?  It  has  been  suggested 
that  "  probably  the  term  [burgagium]  at  first  referred  primarily 
to  the  land,  afterward  to  the  house."  ^  'Burgagium,'  however, 
was  not  a  term  of  common  use;  in  the  early  part  of  our  period 
it  was  used  hardly  at  all;  the  records  concern  *  messuagia  ' 
or  '  tenementa  '  but  not  burgages.  Nor  does  the  common  use 
of  the  terms  messuage  and  tenement  follow  the  order  suggested, 
for  in  the  older  boroughs  their  primary  application  is  sometimes 
to  the  land  and  sometimes  to  the  house,  and  the  terms  are  so 
used,  each  borough  ha\ing  its  own  fashion,  all  through  the 
middle  ages.^ 

Generally  speaking  and  anticipating,  the  '  burgage  '  was  the 
land,  or  the  house,  or  both;  it  contained  all  these  meanings 
and  any  one  of  them,  depending  on  the  place  and,  to  a  small 
extent,  the  time;  the  result  was  the  same,  a  burgage  was  almost 
anything  '  holden  in  free  burgage  '  on  which  or  in  which  it  was 
possible  to  live,  and  which  in  the  older  boroughs  might  be  any- 

Rospont  (Ross;  Hore,  Wexford,  i,  p.  143)  and  in  1301  the  burgesses  of  Liskcard 
(Allen,  Liskcard,  p.  18)  accounted  for  such  rents. 

From  the  charter  to  Norwnch  of  1403,  the  mayor  then  being  cscheator  ex  officio 
(the  rule  when  a  borough  was  incorporated),  it  appears  that  his  deputy,  though 
he  must  "  account  in  the  Exchequer  for  the  profits  .  .  .  shall  not  be  compelled  to 
go  out  of  the  city  to  account  "  (lilomcfield,  Norfolk,  iii,  pp.  121,  122). 

Infrequently  the  holder  of  an  escheated  or  forfeited  messuage  must  pay  the  rent 
directly  to  the  royal  financial  ofiicials,  as  at  Scarborough,  where  a  burgess  who  had  a 
messuage  of  this  sort  paid  the  rent  "  by  his  own  hand  at  the  king's  exchequer  every 
year  "  (Brown,  Yorkshire  Inquisitions,  iii,  p.  93),  and  possibly  at  London  (C.  C.  R., 
i,  p.  367,  (J.  1251). 

*  Gross,  Gild  Mcrchatil,  i,  p.  71,  note  3. 

*  Some  of  the  oldest  records,  as  Liber  Winton',  use  domus  and  (rarely)  terra 
as  a  name  for  the  tenement.  In  a  few  boroughs  the  term  '  burgage  '  seems  to 
pass  from  land  to  house. 


BURGAGE  RENTS  93 

thing  between  and  including  the  cellar  and  the  attic.  The  term 
burgage  was,  of  course,  appHed  first  to  land  when  a  borough  was 
created  by  charter  where  no  town  existed  before,  as  was  the  case 
with  many  boroughs  in  Ireland.^  When  a  house  was  built 
on  an  allotment  of  this  land  it  too  was  a  burgage  ^  and  both 
were  called  a  burgage.^  When  a  burgage  or  messuage  was 
reduced  to  its  lowest  terms  there  was,  of  course,  nothing  left 
but  the  land,  also  on  this  the  landgable  lay.  This  shows  the 
primary  conception  of  the  burgage  before  the  age  of  burghal 
records;  it  must  not  be  forgotten,  however,  that  hawgable  too 
comes  down  from  the  same  shadowy  age.* 

^  In  all  the  boroughs  having  Norman  customs  the  primary  idea  of  the  burgage 
must  have  been  a  certain  amount  of  land.  In  such  places  the  number  of  the 
burgages  remained  the  same  all  through  our  period. 

2  Not  a  chattel,  a  distinction  of  importance;  see  pp.  144,  n.  i,  208. 

^  As  in  the  Earl  of  Pembroke's  charter  to  Wexford  in  1317,  "liceat  eisdem  bur- 
gensibus  de  tenementis  suis  que  tenent  in  burgagiis  suis,  .  .  .  disponere  sicut  sibi 
melius  viderint  expedire,  sive  edificia  sive  ortos  sive  virgulta  sive  alia  "  {Chartae 
Hiberniae,  p.  47). 

At  Preston  he  who  wished  to  become  a  burgess  must  get  his  "  burgage  from  the 
mayor."  When  his  burgage  "  shall  be  a  void  place,  the  mayor  shall  admit  him, 
so  that  he  shall  erect  his  burgage  within  forty  days  upon  a  forfeiture  "  (Hardwick, 
Preston,  p.  259);  a  burgage  must  be  twelve  feet  in  front  {ibid.,  p.  260). 

*  The  prominence  of  the  idea  of  land  is  apparent  in  the  records  of  transfer  of 
many  boroughs;  "  Sciatis  me  dedisse  .  .  .  burgagium  meum  [in  Kenfig]  .  .  .  et 
unum  masagium  in  Cardif  super  quod  domus  sua  est  "  (Clark,  Cartae  Glamorg., 
iii,  p.  166,  c.  1250);  this  distinction  between  burgage  and  messuage  is  a  distinction 
without  a  difference.  The  restriction  of  '  burgage  '  to  a  tenement  which  en- 
titled its  holder  to  a  vote  in  parliamentary  elections  did  not  exist  in  the  middle 
ages. 

The  burgage  was  the  land  at  Weymouth,  "  dwelling  [on]  or  having  burgages  " 
(Moule,  Weymouth,  p.  18).  At  Scarborough  in  3  Ed.  I  the  jurors  said  that  the  prof- 
its of  certain  mills  and  a  house  "  belong  and  ought  to  belong  to  the  demesne  of 
the  said  burgesses  .  .  .  and  not  to  the  farm  of  the  same  town;  saving  to  the  King 
the  ancient  gabelage  from  the  tenements  on  which  the  three  mills  are  placed,  that  is 
for  the  site  of  each,  4d.;  and  saving  to  the  King  6d.  a  year  from  the  house  bought  " 
(Brown,  Yorkshire  Inquisitions,  i,  p.  164). 

The  idea  of  land  ruled  at  Eton  in  1307  (C.  A.  D.,  i,  p.  350,  "  half  a  burgage 
with  its  houses  "),  Kingston-on-Thames,/.  Ed.  I  or  Ed.  II  {ibid.,  i,  p.  385, "  tene- 
ment .  .  .  with  a  house  built  thereon  "),  Bykes  (C.  A.  D.,  i,  p.  396,  "  two  burgage 
tenements  .  .  .  with  the  buildings  thereon."  This  obscure  borough  of  the  musical 
name  is  in  Bedfordshire),  London  (C.  A.  D.,  i,  p.  397,  35  Ed.  Ill,  "  two  tenements 
with  cellars,  shops,  and  solars,"  equivalent  to  '  two  tenements  with  the  buildings 
thereon  ')•     See  also  H.  M.  C,  Rep.,  8,  p.  269,  5  Rich.  I;   C.  A.  D.,  iii,  p.  295, 


94  BURGAGE  TENURE  IN  ENGLAND 

Whether  or  not  the  land  within  the  ditch  or  wall  was  more 
prominent  than  the  house  there  could  be  no  question  of  its 
prominence  without,  for  agriculture  was  the  chief  industry  in 
most  of  the  EngUsh  boroughs  throughout  our  period.  Few 
boroughs  were  solely  commercial  except  a  small  number  of  sea 
or  river  ports,  and  in  some  of  these  fishing  and  piracy  must  be 
included  under  the  name  of  commerce.  Oxford,  Cambridge, 
and  a  few  other  centers  of  that  sort  excepted,  the  inland  boroughs 
were  almost  wholly  agricultural,  what  little  they  did  in  the  trad- 
ing way  being  done  at  the  usual  fairs.  Under  these  conditions 
land  would  be  needed;  the  burgesses,  like  the  people  of  the 
country,  must  and  did  have  land  in  the  common  fields  or  arable, 
and  pasture  land  as  well.  One  can  readily  see  how  much  some 
boroughs  must  have  resembled  vills.  It  is  this  resemblance 
which  makes  it  so  easy  for  vills  to  grow  into  boroughs,  and  some- 
times so  hard  to  draw  the  line  between  borough  and  vill.  Per- 
haps as  great  a  difference  as  any  lay  in  the  destination  of  the 
lands  in  the  common  fields. 

In  the  vill,  in  general,  each  acre,  or  whatever  the  division 
of  land  might  be,  was  connected  with,  though  not  inseparable 

2  Henry  IV;  H.  M.  C,  Rep.,  g,  pt.  i,  p.  208,  a.  1422;  C.  A.  D.,  i,  p.  100,  11  Henry 
VI;  C.  /.  M.,  Henry  VII,  i,  p.  434,  10  Henry  VII,  etc. 

Burgage  is  used  to  include  both  land  and  houses  at  Canterbury  (Elton,  Tenures 
vf  Kent,  p.  171),  If)swich  (C  A.  D.,  ii,  p.  176,  "  houses  with  the  soil  "),  London 
(C.  A.  D.,  ii,  p.  7),  Cambridge,  and  Nottingham  (H.  M.  C,  Rep.,  i,  p.  105,  "  all 
houses,  edifices,  structures,  as  well  under  ground  as  above  ground  "). 

The  house  idea  seems  to  prevail  at  Winchester  {D.  B.,  iv,  Liber  Winton',  ff.  4b, 
7,  etc.),  Gloucester  (Stevenson,  Records  of  Gloucester,  pp.  83,  150;  Cole,  Rental  of 
the  Houses  in  Gloucester,  1455,  pp.  5-13),  Bridgwater  (H.  M.  C,  Rep.,  3,  p.  311), 
Kenfig  (Clark,  Cartae  Glamor g.,  iii,  pp.  529-530),  '  burgus  de  VVych'  '  {R.  II.,  ii, 
p.  285),  Southampton  (H.  M.  C,  Rep.,  11,  app.,  pt.  3,  p.  57),  Berwick  (C.  P.  R., 
a.  1297,  pp.  227,  247),  Rye  (H.  M.  C,  Rep.,  5,  p.  506). 

In  some  newly  founded  boroughs  buildings  must  be  erected  within  a  certain 
time  under  f)enalty  of  forfeiture,  as  at  Preston  (Hardwick,  Preston,  p.  259).  At 
Inistiogue  '  quillbet  burgensis  post  primam  seisinam  terre  sibi  factam  in  eadem 
villa  residendam  per  propriam  personam  vcl  per  interpositam  infra  tres  septi- 
manas  faciat  vel  impcrpetuam  tcnementum  suum  amittat '  (Gale,  Corporate  Sys- 
tem of  Ireland,  ajjp.,  p.  xiii). 

London  aflords  instances  of  almost  anything.  See  C.  A.  D.,  i,  p.  200  (for  a 
modem  ground  rent,  /.  Ed.  II);  ibid.,  i,  p.  426;  H.  M.  C,  Rep.,  9,  pt.  i,  p.  18; 
C.  /.  M.,  i,  p.  382  (a  wharf  is  a  tenement);  and  Madox,  Firma  Burgi,  p.  118,  "  mes- 
suagium  sive  tencmentum  .  .  .  ruinosum  ct  nullius  valoris." 


BURGAGE  RENTS  95 

from,  some  particular  toft,  and  whoever  held  one  held  the  other, 
although  no  two  holdings  need  be  equal.  Most  villeins  were 
farmers;  often  a  particular  toft  with  its  land  may  have  descended 
through  many  more  unbroken  generations  in  one  villein  family 
than  the  lord  of  the  manor  could  number  in  his  own.  Unless 
the  holder  of  a  toft  happened  to  be  a  smith,  or  wheelwright, 
or  what  not,  there  must  be  in  conjunction  with  his  house  land 
enough  for  him  to  live  by;  in  that  sense  there  was  a  limit  to 
inequality  of  holdings.  The  main  feature,  however,  is  not  the 
amount  of  land  and  toft,  but  the  connection  between  them. 
Was  this  the  case  with  the  boroughs  ?  Did  *  burgage  '  imply 
not  only  the  land  with  its  house  in  the  borough,  but  also  that 
there  was  land  connected  therewith  in  the  common  fields  ? 
For  the  larger  and  more  commercial  towns,  which  it  must 
not  be  forgotten  had  their  fields  as  well  as  the  smaller  agri- 
cultural boroughs,  it  certainly  did  not,  even  though  it  may 
sometimes  appear  as  if  it  did.^  In  these  boroughs,  the  records 
of  land  transfer  show  that  land  in  the  arable  was  a  separate 
subject  of  traffic.  It  might  pass  with  the  messuage  proper  or 
might  be  sold  independently,  and  the  quantity  of  land  con- 
nected with  particular  messuages  varied  greatly  in  amount.^ 
Land  in  the  arable  was  held  under  burgage  tenure,  but  did  not 
form  part  of  the  burgage  tenement. 

Such  was  the  case  in  the  boroughs  by  prescription;  boroughs 
created  by  charter  need  more  particular  treatment.  Such 
places  were  of  two  sorts,  the  vill  which  got  a  charter  as  a  liher 
burgus  and  the  newly  founded  town:  in  the  first  class  were  most 
of  the  baronial  and  ecclesiastical  boroughs  of  England,  in  the 
second  those  of  Ireland  and  the  Welsh  marches.  In  the  former 
the  charter  commonly  allowed  all  lands  held  by  the  new  burgesses 
to  come  under  burgage  tenure,  in  which  case  these  lands  would 
be  held  and  treated  as  in  the  ancient  boroughs,  all  of  whose  priv- 
ileges the  recently  enfranchised  manors  were  anxious  to  attain. 

^  As  at  Norwich:  "ten  acres  of  arable  land  to  that  messuage  appertaining,"  a 
large  amount  for  one  messuage  in  a  borough  so  commercial  as  Norwich  (Stanley 
V.  Mayor,  etc.,  f.  5). 

2  See  R.  H.,  ii,  pp.  356  et  seq.,  and  Maitland's  comments  in  his  Township  and 
Borough. 


96  BURGAGE  TENURE  IN  ENGLAND 

In  some  few  of  the  English  baronial  boroughs  the  charter  limited 
the  amount  of  land  to  be  held  in  free  burgage,^  but  the  common 
practice  was  as  previously  stated,  a  practice  and  condition  very 
clearly  illustrated  in  Henry  de  Lacy's  charter  to  his  men  of 
Congleton,^  which  was,  as  were  all  towns  of  its  character  in  Eng- 
land, a  borough  created  by  charter  but  not  a  created  borough. 

In  the  created  boroughs  of  Ireland  and  on  the  Welsh  marches 
it  was  necessary  that  there  should  be  some  limit  to  the  amount 
of  land  which  should  come  under  burgage  tenure.  In  England 
outlying  manors  and  natural  development  generally  fixed  the 
bounds  of  the  boroughs;  in  Ireland  and  the  marches  the  world 
was  all  before  them.  It  was  manifestly  out  of  the  question 
to  allow  to  the  tenure  all  land  that  a  burgess  might  acquire, 
so  an  elastic  but  definite  limit  was  found  in  the  amount  of  land 
with,  and  not  a  part  of,  each  burgage.^ 

1  Leeds  affords  apparently  the  only  important  instance  of  this  practice.  In 
1208,  Maurice  Paganel's  charter  gave  "  to  my  burgesses  of  Leeds  .  .  .  liberty  and 
free  burgage,  and  their  tofts,  and  with  each  such  toft  half  an  acre  of  arable  land 
.  .  .  ,  for  each  such  toft  and  half-acre,  1 6d.'  (Wardell,  Z,f<'(/5,  app.,  p.  iv).  It  seems 
that  here  the  half-acre  was  considered  an  integral  part  of  the  messuage;  the  rent 
lay  on  both  it  and  the  toft,  a  condition,  however,  which  e.xisted  at  no  other  borough, 
except  possibly  Denbigh.  Leeds  was  a  borough  created  by  charter  but  was  not  a 
created  borough;  its  men  became  burgesses  and  their  tofts  burgages,  but  they 
must  have  had  more  land  than  that  spoken  of  in  the  charter.  The  sites  of  their 
houses  and  half  an  acre  with  each,  however,  were  all  that  came  under  the  tenure, 
if  the  charter  be  interpreted  literally.  Morpeth  seems  to  have  resembled  Leeds 
in  some  ways  but  the  acres  ap|:)ear  to  have  borne  a  small  rent,  id.  for  3  acres 
(H.  M.  C,  Rep.,  6,  p.  527,  a.  1283). 

*  Head,  Congleton,  p.  34,  "  we  will  .  .  .  that  the  aforesaid  Burgesses  .  .  .  may 
have  and  hold  their  Burgages  and  the  lands  to  the  Burgage  belonging,  and  also 
the  lands  within  the  said  Lordship  which  can  be  reasonably  appropriated  and  rented 
.  .  .  every  burgage  for  6d.  yearly  and  every  acre  of  land  for  i2d." 

'  The  same  method  that  was  followed  in  Ireland  was  sometimes  used  in  I^ngland. 
At  Agardsley  "  each  [burgess]  may  have  with  his  burgage  three  acres  of  land, 
namely  two  acres  arable  and  one  to  build  a  burgage  house  uix)n"  (Mosley,  Tutbury, 
app.  viii,  p.  383).  There  is  no  separation  between  the  rents  of  acre-strips  and 
burgage  plots,  as  at  Congleton  and  elsewhere  ;  the  rent,  i8d.,  is  apparently 
due  from  both  land  and  site  of  house.  In  such  a  case  it  was  borne  by  the 
latter. 

At  East  (Irinstcad  in  Sussc-t  there  were,  as  late  as  the  middle  of  the  i6th  century, 
48  burgages  and  47  '  j)ortlands,'  or  lands  in  the  common  fields;  the  burgage  rent 
was  3d.  and  each  [wrtland  3d.  (Hills,  East  Grinstead,  pp.  10  and  40-41).  When 
the  rental  was  drawn  up  there  were  burgages  without  portlands  and  some  with  more 


BURGAGE  RENTS  97 

These  boroughs  of  shilling  rents  and  lands  assigned,  whether 
in  England  or  in  Ireland,  whether  the  burgage  alone  bore  the 
twelvepenny  rent  and  the  land  nothing  as  in  the  latter  country, 
or  whether  the  acre  strips  had  each  its  own  rent  in  addition  to 
that  on  the  burgage  as  in  the  former  country,  afford  examples 
of  the  influence  which  a  Norman  ville,  always  obscure  and 
vanished  long  ago,  exerted  to  a  greater  or  less  extent  on  many 
of  the  boroughs  of  Ireland  and  on  unimportant  boroughs  of  the 
west  of  England.  This  is  a  subject  for  later  treatment,^  but 
there  is  at  least  one  borough  whose  tenurial  customs,  though 
reflecting  foreign  influence,  were  certainly  not  imitative  of  those 
of  Breteuil.  The  town  in  question,  Denbigh,  seems  to  have 
combined  English  tenurial  custom  with  that  of  a  bastide  of 
southern  France.  For  this  place  there  were  two  names  and  two 
charters,  the  first  in  1252  was  to  the  *  town  of  Gannoc'  ^  Then 
came  the  Welsh  and  Gannoc  was  as  if  it  had  never  been.  The 
refounder,  Henry  de  Lacy,  Earl  of  Lincoln,  from  which  shire 
came  probably  most  of  his  men,  granted  most  of  the  burgages 

than  one;  probably  at  the  date  of  the  charter  each  burgage  had  the  same  connected 
amoiint  of  land. 

At  Llandovery  the  rent  of  a  biu-gage  was  i2d.  and  of  each  acre  in  the  fields  i2d. 
{Parliamentary  Papers,  1835,  xxiii,  p.  301);  at  Ruyton  in  2  Ed.  II  each  burgage 
paid  i2d.  and  each  acre  4d.  {ibid.,  xxvi,  p.  2858).  At  Altringham  the  custom  is  as 
at  Congleton,  the  rent,  i2d.,  covers  both  burgage  and  land  in  the  fields:  "  xmus- 
quisque  burgensis  teneat  burgagiimi  suum  duarum  perticarum  terrae  in  latitudine 
et  quinque  in  longitudine  cum  ima  acra  terrae  integra  in  campis  pro  duodecim 
denariis  "  {ibid.,  xxvi,  p.  2574). 

At  Ross  each  house  had  four  acres  of  land  (Hore,  Wexford,  i,  p.  153),  at  Rathcool 
the  amount  was  the  same  (Gale,  Corporate  System  of  Ireland,  app.,  p.  x,  "  singtilis 
eorum  quatuor  acris  terrae  in  messuagio,  prato,  et  terra  arabili  "),  at  Inistiogue 
it  was  three  acres  {ibid.,  p.  xii,  "  cum  tribus  acris  "),  while  at  Rathmore  most 
burgesses  had  seven  acres  each:  "  quatuor  viginti  et  quinque  burgagia  cum  perti- 
nentibus,  viz.  ad  unumquodque  burgagium  septem  acras  terrae  et  frontem,  et 
imdecim  burgagia  .  .  .  dimidiam  acram  terrae  et  frontem  "  {ibid.,  p.  xix).  The 
'  frons  '  is  the  building  lot  or  its  frontage  within  the  ditch  or  wall. 

At  Oswestry  the  rent  of  a  burgage  was  i2d.,  and  of  three  acres,  the  amount 
with  each  burgage,  i2d.  (Tait,  Mediaeval  Manchester,  p.  65). 

^  See  below,  pp.  166-172. 

2  C.  C.  R.,  i,  p.  378.  The  charter  made  the  place  a  free  borough  with  the  cus- 
toms of  Montgomery.  Each  burgess  got  "  within  the  said  borough  half  an  acre 
to  build  and  make  a  curtillage,  and  without  the  borough  two  acres  of  arable  land," 
rent  of  all  24d. 


98  BURGAGE  TENURE  IN  ENGLAND 

in  this  wise,  "  one  burgage  in  Denbigh  within  the  walls,  and  one 
curtilage  in  Denbigh  without  the  walls  ";  sometimes  a  burgage 
was  accompanied  by  an  "  oxgang  of  land  with  the  appurtenances 
in  Astrad  Canon  "  or  some  other  near-by  locality,  but  usually 
the  amount  of  land  in  the  fields  was  not  specified.^ 

There  is  some  resemblance  between  this  plan  and  that  followed 
in  Ireland,  where  each  burgess  received  an  allotment  of  from 
three  to  seven  acres  and  usually  a  building  lot  as  well.  But 
whether  the  burgages  were  supposed  to  be  the  total  amount  of 
land  or  not  makes  no  difference  in  the  character  of  the  borough. 
Each  house  did  not  stand  apart  from  the  rest  on  its  three  to 
seven  acres.  The  boroughs  of  Ireland  were  mostly  walled 
to  guard  against  attacks  by  the  Irish,  the  houses  therefore 
stood  fairly  close,  the  *  acres '  were  in  the  fields,  '  prata  et  terrae 
arabiles.'  ^  The  founders  of  these  towns  might  have  drawn  a 
distinction  between  lands  and  burgages,  as  was  done  at  Congleton 
and  other  English  baronial  boroughs.  They  did  not,  however; 
they  were  creating  boroughs  and  importing  burgesses;  their 
towns  were  the  villes  neuves  or  Freistddte  of  Ireland,  Congleton 
was  in  peaceful  England.  It  was  the  simplest  plan  to  give  the 
burgesses  each  a  few  acres  and  let  them  huddle  their  houses  as 
close  as  they  wished.' 

^  See  Williams,  Denbigh,  pp.  302-305.  The  burgage  rent  was  id.,  in  a  few 
cases  4(1.  to  i6d.  For  the  bastides  see  A.  Curie  Seimbres,  Essai  stir  les  Bastides, 
p.  166.  In  such  places  there  were  three  sorts  of  lands:  first,  the  comparatively 
small  and  equal  plots  within  the  walls;  second,  the  divisions  close  around  the  walls, 
"  ils  avaient  pour  destination  I'^tablissement  de  jardins  potagcrs;"  and  third, 
the  fields.  So  in  Denbigh  there  were  the  three  sorts  of  land  within  the  bounds  of 
the  borough;  though  not  every  burgess  may  have  had  land  in  the  fields,  he  always 
had  his  garden  plot  beyond  the  wall.  It  seems  probable  that  de  Lacy  had  served 
in  Guienne. 

*  Miss  M.  Bateson  seemed  to  hold  the  opinion  {English  Historical  Review, 
xvi,  p.  341)  that  each  burgage  in  the  strict  sense  was  of  three  or  more  acres,  i.  e., 
that  each  burgess  had  this  allotment  around  his  house.  A  truly  defensible  place 
such  a  settlement  would  be. 

In  one  sense  the  burgage  seems  to  include  the  land,  for  the  i2d.  rent  is  the  rent 
of  the  whole  grant  to  each  burgess.  Yet  it  lies  on  the  burgage  proper;  otherwise 
the  acres  would  have  been  inseparable  from  the  burgage,  a  condition  which  so  many 
transfers  of  lands  in  the  fields  show  not  to  have  existed. 

'  Often  the  charters  granted  building  lots  exclusive  of  the  lands  assigned;  the 
size  of  the  former  was  never  specified.      The  burgesses  would  settle  that  matter. 


BURGAGE  RENTS  99 

At  most  of  the  English  and  Welsh  baronial  boroughs  the 
burgages  had  no  connection  with  particular  acre-strips,  the 
burgage  paid  one  rent,  each  acre  of  land  another;  elsewhere, 
both  in  created  and  in  ancient  boroughs,  the  lands  paid  no  rent 
as  such.^  At  Leeds  and  at  Denbigh  it  seems  probable  that 
there  was  some  connection  between  the  burgage  and  the  curti- 
lage which  went  with  each.  Very  likely  the  connection  long 
remained.  A  burgess  needed  a  garden;  in  many  boroughs  he 
had  one  near  his  house;  it  was  sometimes  called  an  orchard. 
At  Denbigh  there  seems  to  have  been  no  room  for  such  within 
the  walls,  as  the  place  was  really  a  fort,  and  did  not  care  to  be 
wasted  again. ^  On  the  whole  it  is  plain  that  there  was  no 
connection  between  the  burgages  and  the  acre-strips  which  lay 
dividedly  in  the  common  fields  other  than  common  tenancy 
of  each  by  one  holder.  The  greatest  holder  of  messuages  was 
not  necessarily  the  greatest  holder  of  lands;  many  a  burgage 
holder  had  little  land  or  none,  and  the  landgable  lay  on  the 
messuage  within  the  ditch  or  wall. 

How  large  as  a  rule  was  this  messuage,  this  tenement  of  the 
towns  ?  It  has  often  been  assumed  that  the  mediaeval  burgess 
lived  in  very  narrow  quarters,  and  to  judge  from  mediaeval 
pictures  and  the  width  of  old  streets,  he  seems  to  have  been  some- 
what large  for  his  house.  Picturesqueness  rather  than  accuracy, 
however,  was  the  strong  point  of  the  mediaeval  artist,  and  though 
no  doubt  the  assumption  of  limitation  is  correct  in  the  main, 
it  appears  to  be  scarcely  safe  to  judge  wholly  from  this  sort  of 
evidence,  and  still  unsafer  to  form  an  opinion  of  the  character 
and  size  of  the  messuage  of  the  middle  ages  from  the  small  and 
ruinous  burgages  of  the  period  immediately  preceding  the  Reform 
Bill.  Nor  yet  do  the  burgages  of  charter-created  boroughs 
afford  a  criterion.     Such  boroughs  were  often  artificial  and  the 

From  Giraldus  Cambrensis  to  Macaulay  every  writer  who  touches  on  the  Irish 
boroughs  speaks  of  the  condensation  of  the  houses  in  the  '  EngHsh  towns.' 

^  Cambridge,  where  land  rents  and  house  rents  were  separate  (see  p.  62),  affords 
apparently  the  only  exception  among  the  ancient  boroughs,  at  least  in  the  age  of 
records. 

"■  Possibly  Maurice  Paganel,  the  charterer  of  Leeds  in  1208,  may  have  been 
influenced  by  the  peculiar  fashion  of  the  bastides. 


lOO  BURGAGE  TENURE  IN  ENGLAND 

clauses  in  their  charters  which  Umit  the  frontage  of  a  messuage 
to  twenty  feet  or  less  or  more,  though  wise  in  aim  and  probably 
good  in  result,  refer  only  to  a  minimum  within  which  a  burgage 
must  not  shrink  without  endangering  its  holder's  burghal  status.^ 
In  a  few  records  of  transfer  the  locations  and  sizes  of  the  mes- 
suages, some  of  which  were  plainly  residences  and  some  as 
plainly  shops  or  stalls  in  or  near  the  market-place,  seem  to  show 
that  the  town-dweller  was  not  always  cramped  for  room  or 
forced  to  pay  a  very  high  rent.  When  three  messuages  in  London 
which  together  had  a  breadth  of  80  feet  to  93  feet,  each  being 
150  feet  deep,  were  rented  for  half  a  mark  yearly,^  and  another 
of  44  feet  by  200  feet  was  sold  for  two  bezants  and  a  yearly 
rent  of  a  shilling,^  real  property  seems  to  have  been  cheap  and 
tenements  large.  When,  however,  a  piece  of  land  34  feet  by 
17^  feet,  probably  near  St.  Paul's,  was  sold  for  two  marks  of 
silver  and  a  yearly  rent  of  twenty  shillings,  size  and  value  at 
once  change  places.*  The  messuages  of  the  first  two  transac- 
tions consisted  apparently  of  houses  with  gardens  at  the  back 
on  land  '  sloping  toward  the  Thames  ' ;  the  small  plot  seems 
to  have  been  a  business  stand. ^ 

'  In  direct  contrast  to  the  boroughs  of  minimum  limit  was  Dublin,  where  a  late- 
adopted  clause  of  the  customal  enacted  that  "  each  burgage  within  the  city  should 
not  exceed  64  feet  "  (Gilbert,  Records  of  Dublin,  i,  p.  224). 

'  C.  A.  D.,  I,  p.  194,  temp.  John. 

*  C.  A.  D.,  i,  p.  196,  temp.  Henry  III.  In  this  and  the  previous  record  the 
dimensions  are  given  in  ells,  probably  doth  ells.  If  land  ells,  20%  should  be 
deducted  from  every  measurement. 

♦  H.  M.  C,  Rep.,  9,  pt.  I,  p.  67,  a.  1132.  The  form  of  transfer  is  quite  unlike 
the  stereotyped  uniformity  of  later  deeds:  "  Facta  est  convcntio  haec  inter  can- 
onicos  bcati  Pauli  et  Meinbodum,  videlicet  quod  concedunt  ci  terram  quam  prius 
tenuit,  et  ju.xta  illam  aliam  quae  in  longitudine  xxxiiij  pedes  et  in  latitudine  xvij 
pedes  habet  et  dimidium.  Concedunt  inquam  ei  et  hercdibus  suis  in  feodo  et  jure 
hereditario,  cum  socca  et  sacca,  singulis  annis  pro  xx  solidos  .  .  .  reddendis.  Pro 
hac  autera  conventione  dedit  prefatis  fratribus  ij  marcas  argenti."  Shortly  before, 
the  annual  rent  was  only  2s. 

'  Dimensions  of  messuages  from  a  few  of  the  fair  number  of  records  of  size  are: 
London,  2  John,  60  ft.  by  40  ft.  {Placit  Westmon.  Abbr.,  p.  27,  rot.  13,  dorse);  Lon- 
don, temp.  Henry  III,  130  ft.  by  28  ft.,  terms  i  bezant,  i  scxtary  of  wine,  i2d.  rent. 
Nothing  is  said  of  houses  in  any  of  these  grants;  probably  all  the  lots  were  built  on, 
the  measurements  arc  given  in  ells. 

"  Assisa  pro  Ixxxiiii  pcdatis  terre  in  longitudine  &  sex  pedatis  tcrre  &  diraidio  in 
latitudine  "  in  Petcrsfield;   "  pro  tenemento  in  suburbio  Wynton  pro  vi  pedatis 


BURGAGE  RENTS  lOI 

The  varying  sizes  of  messuages  are  apparent  from  the  appended 
records,  many  of  which  may  concern  land  alone  regardless  of 
the  houses  built  thereon,  to  judge  from  size  and  price.  These 
records  of  large,  low-priced,  London  tenements  seem  to  have 
something  about  them  savoring  of  transfers  for  a  merely  nominal 
sum.  Perhaps  a  truer  idea  of  the  worth  of  real  property  in 
London  may  be  got  from  the  fact  that  roomy  substantial  tene- 
ments for  rent,  most  of  them  of  the  nature  of  modem  three-flat 
apartment  houses,  though  without  janitors  or  elevators,  might 
be  obtained  in  the  first  part  of  the  fourteenth  century  or  earUer 
for  £  I  or  £2  a  year.^ 

longitudine  &  iii  pollicibus  latitudine  "  {Placit.  Westmon.  Abbr.,  p.  189,  4  Ed.  I); 
these  are  oddities. 

Dublin,  1262-6.3,  60  ft.  by  7  ft.  (Gilbert,  Records  of  Dublin,  i,  p.  95,  a  line-fence 
dispute);  London,  25?  ells  by  8^  ells,  rent  4s.  (C.  A.  D.,  i,  p.  200);  the  land  alone 
was  granted,  the  houses  thereon  were  worth  40s.  yearly;  London,  21^  ells  to  15  ells 
by  315  ells,  rent  of  assize  (not  the  landgable)  3s.  a  year  (C.  A.  D.,  iv,  p.  144);  Lon- 
don, 28j  ells  6  in.  by  4  ells  and  7  in.  (C  P.  R.,  a.  1279,  P-  32>z)',  London,  1280, 
"  messuage  of  stone,"  7  ells  and  6  in.  by  95  ells  and  8  in.,  "  with  all  its  court "  of 
6f  ells  by  15  ells  and  8  in.  (C.  C.  R.,  ii,  p.  245;  the  ell  is  the  iron  ell);  Ipswich, 
temp.  Ed.  I,  "  a  piece  of  land  with  buildings,"  43  ft.  by  23  ft.,  rent  2s.  8d.  (C.  A.  D., 
ii,  p.  227);  Norwich,  temp.  Ed.  II,  two  "  placeae,"  28  ft.  by  9  ft.  and  27  ft.  by  10  ft., 
service  i6s.  a  year  and  four  small  rent-charges  (Stanley  v.  Mayor,  etc.,  ff.  16  and 
22;  probably  these  are  stalls  in  the  market);  Norwich,  "  messuage  and  garden," 
10  perches  by  5  perches  (C  P.  R.,  a.  1380,  p.  496);  Carlisle,  "  tofts,"  18  ft.  by  ;^s  ft. 
and  18  ft.  by  45  ft.  (C.  C.  R.,  iii,  p.  93,  a.  1307);  Oxford,  two  messuages,  together 
90  ft.  by  57^  ft.  (C.  P.  R.,  a.  1380,  p.  527);  Liverpool,  1314,  24  ft.  by  65  ft.,  four 
rents  whose  sum  was  i8^d.;  London,  19  Henry  VI,  two  tenements  each  28  ft.  by 
27  ft.  of  assize,  10  ft.  apart  (H.  M.  C,  Rep.,  9,  pt.  i,  p.  12).  See  also  Benham,  Red 
Parchment  Book  of  Colchester,  pp.  45  et  seq.,  for  sizes  and  rents  of  messuages  in  the 
fourteenth  century. 

^  For  a  detailed  and  accurate  description  of  London  houses  see  Riley,  Munimenta 
Gildhallae,  i,  pp.  x.xx-xxxl. 

The  constant  use  of  the  ell,  in  London  especially,  as  a  unit  of  measurement  is 
confusing.  The  cloth  ell  was  45  in.  between  the  lists,  and  this  ell  was  statutory 
temp.  John.  The  land  ell  was  36  in.  but  was  not  statutory  till  a  period  (  ?  temp. 
Edward  II)  later  than  that  of  most  of  the  subjoined  records.  The  iron  ell  of  many 
grants,  so-called  from  iron  standards  at  London  and  other  cities,  was  the  cloth  ell. 
See  Maitland,  Domesday  Book  and  Beyond,  pp.  371  el  seq.,  and  also  Stattites  of  the 
Realm,  i,  pp.  206-207. 

There  are  many  records  showing  how  dose  to  modem  city  conditions  land  or 
real  estate  holding  in  the  mediaeval  boroughs  approached,  the  manner  in  which 
the  tenement  had  been  and  might  be  divided,  and  the  uniformity  of  building  and 
holding  all  over  England.     Fitz-Alwyn's  Assize  in  the  thirteenth  century  shows  the 

LIBRARY 
UNIVERSITY  OF  CALIFORNIA 


I02  BURGAGE  TENURE  IN  ENGLAND 

Foreign  Tenures  within  the  Borough  Bounds 

Every  borough  had  its  *  ancient  metes  and  bounds,'  *  —  far 
beyond  the  ditch  or  wall  as  a  rule,  and  often  impressed  on  the 
burgesses'  memories  by  *  riding  the  bounds,'  —  within  which  it 
is  commonly  assumed  that  all  real  property  was  held  under 
burgage  tenure.'*  Within  some  of  the  ancient  boroughs,  how- 
ever, there  were  little  islets  of  feudalism,  tenements  not  under 
burgage  tenure.  Of  this  sort  might  be  a  few  acre-strips  in  the 
fields,  perchance  in  early  times  and  rarely  an  isolated  tenement 
in  a  borough; '  in  neither  case  was  the  holder  considered  a  bur- 
character  of  the  usual  London  house,  and,  except  that  the  houses  may  not  always 
have  been  so  high,  the  same  plan  was  followed  in  most  of  the  older  English  boroughs. 
The  common  expression  in  referring  to  a  house  was  '  cellar,  solar,  and  curtilage.' 
The  cellar  was  nearly  always  a  fairly  high  basement,  the  '  solarium  '  was  the  second 
story,  the  third  story  was  the  '  attic'  Each  story  or  any  part  of  it  might  be  a 
burgage  tenement.  The  curtilage  was  the  yard,  or  yard  and  garden.  See  Frost, 
Hull,  p.  46;  Stevenson,  Records  of  Nottingham,  p.  388;  H.  M.  C,  Rep.,  3,  p.  360 
(Wells)  ;  ibid.,  11,  app.,  pt.  3,  pp.  57  (Southampton),  63,  90;  ibid.,  15,  app., 
pt.  ro,  p.  139  (Coventr>');  Parkin,  Lynn,  pp.  123,  133;  Cole,  Rental  of  the  Uoiises  in 
Gloucester,  p.  47;  D.  B.,  iv,  Liber  Winton',  fif.  3  and  4b;  Gilbert,  Records  of  Dublin,  i, 

pp.  lOQ-IIO. 

For  the  solar  see  C.  A.  D.,  iv,  p.  223  (London),  'sollar'  "sine  fundamento"; 
H.  M.  C,  Rep.,  3,  p.  314  (Bridgwater);  ibid.,  $,  p.  605  (Exeter).  For  curtilage  see 
D.  B.,  iv,  Liber  Winton',  f.  7;  H.  M.  C,  Rep.,  6,  p.  483  (Bridport);  ibid.,  10, 
app.,  pt.  3,  p.  281  (Wells). 

The  shrinkage  or  decay  of  the  original  burgage,  so  prominent  in  the  period  before 
the  Reform  of  1832  (see  Edward  Porritt,  The  Unreformed  House  of  Commons 
(Cambridge,  1903),  i,  pp.  37-41),  seems  to  have  begun  before  the  dose  of  the  middle 
ages.  For  records  of  such  '  ruinous  tenements  '  see  H.  M.  C,  Rep.,  6,  p.  520 
(Hythe);  Cole,  Rental  of  the  Houses  in  Gloucester,  p.  5;  Widdrington,  Analecta 
Eboracensia,  p.  255;  C.  /.  M.,  Henry  VII,  i,  pp.  100  (Richmond);  ibid.,  i, p.  146, 
R.  F.,  knight,  held  24  messuages  in  York  worth  2od.  each  "  and  no  more,  being  in 
ruins  for  lack  of  repairs  ";  ibid.,  i,  p.  281  (E.xeter);  Madox,  Firma  Burgi,  p.  118 
(London). 

'  Created  boroughs,  of  course,  excepted. 

*  This  is  generally  the  situation,  as  a  charter  to  Dublin  (Walsh,  Dublin,  i,  p.  378) 
shows.  In  Dublin  and  the  other  ancient  boroughs  the  tenure  had  grown  up  on 
certain  lands.  Dublin  wiis  a  Danish  city  when  the  English  got  it,  and  the  Bristol 
customs,  for  instance  the  low  and  variable  landgable  and  free  devise,  seem  to  have 
fitted  it  so  well  that  they  were  probably  not  very  different  from  its  own. 

'  David  the  Dyer's  tenement  in  Carlisle,  so  frequently  referred  to  by  town 
historians,  is  ajiparenlly  the  only  example  of  the  latter  sort.  See  Thomiis  Madox, 
The  History  and  Antiquities  of  the  Exchequer  (2d  ed.,  1769),  i,  p.  404,  and  Baines, 
Liverpool,  p.  92;   the  latter  uses  this  example  to  prove  that  no  one  had  '  burgage  ' 


BURGAGE  RENTS  I03 

gess.^  During  the  middle  ages  the  boundaries  of  a  few  small 
boroughs  were  extended,  usually  by  piecemeal  additions, ^  and 
a  few  of  the  greater  boroughs  were  enlarged  by  the  addition 
of  villages  near  by,^  but  in  general  a  borough's  tenurial  boun- 
daries remained  the  same  all  through  the  mediaeval  period. 

Far  greater  in  number  and  in  importance  than  these  ostra- 
cized foreign  holdings  were  the  messuages  in  the  fee  of  the  castle, 
which  in  many  boroughs  rose  almost  in  the  midst  of  the  town, 
from  whose  houses  nothing  separated  it  but  its  ditch.  The 
castle  itself  was,  of  course,  under  feudal  tenure,  and  as  it  often 

rights  unless  he  lived  on  '  crown  land '  meaning  probably  that  a  burgess  mus  t 
hold  directly  of  the  king  in  a  royal  borough.  This  was  never  the  case;  even  in 
charter  created  boroughs  biu-gess  rights  went  with  every  tenement  till  it  fell  below 
a  minimum  frontage;  even  then  it  was  still  held  in  free  burgage.  The  burgages 
of  the  '  burgage  boroughs  '  of  the  ante-Reform  Bill  period  were,  however,  held  of 
the  lord  of  the  borough  and  paid  landgable. 

^  Probably  the  pieces  of  land  in  the  fields  were  or  had  been  parts  of  manors. 
They  may  have  been  more  frequent  on  the  Welsh  border.  See  Johnson,  Customs 
of  Hereford,  pp.  36-37,  a.  1280-81:  "  There  are  some  lords  and  their  tenants  who 
are  dwellers  and  holders  of  land  within  the  said  bounds  which  they  held  by  a  service 
called  Liberum  Feodum.  .  .  .  But  concerning  their  foreign  service  .  .  .  their 
lords  are  not  excluded  by  us  nor  by  our  liberties.  For  we  never  intermix  our- 
selves with  them  in  anything  touching  those  tenures.  .  .  .  Such  men  .  .  .  are  not 
burgesses."  Widdrington  {Analecta  Eboracensia,  pp.  249  flF.)  has  a  long  story  con- 
cerning a  messuage  in  York  held  in  grand  serjeanty  by  the  service  of  keeping  the 
jail  of  the  forest  of  Galtres. 

2  At  Plympton  the  Earl  of  Devon,  when  granting  the  borough  at  farm  to  the 
burgesses  for  £24  2s.  2d.  in  1242,  saves  "  to  the  earl  any  increase  he  can  make  in 
rents  of  .  .  .  foreign  lands  without  the  borough  "  (C.  C.  R.,  ii,  p.  303). 

The  prior  and  convent  of  Montacute  granted  an  extension  of  the  borough  along 
apparently  the  only  street  (Somerset  Record  Society,  [Publications],  viii,  Bruton 
and  Montacute  Cartularies,  p.  210;  the  place  seems  a  strung-out  western  village, 
very  different  from  the  nucleated  eastern  type).     See  also  Head,  Congleton,  p.  34. 

^  C.  C.  R.,ii,  p.  474,  a.  1298  (Newcastle);  ibid.,  iii,  p.  190,  40  Henry  III  (Scar- 
borough) . 

Political  and  tenurial  boundaries  were  not  always  co-incident.  See  Mrs.  J.  R. 
Green,  Town  Life  in  the  Fifteenth  Century,  ii,  p.  40  for  Carlisle  and  Hereford.  At 
Lymington  in  the  nineteenth  century  the  borough  boundaries  were  undefined, 
tenements  not  burgages  stood  "  within  the  heart  of  it  ";  and  some  of  its  burgages 
were  separated  from  the  borough.  Tradition  has  it  that,  the  French  having  burned 
most  of  the  town  during  the  Hundred  Years'  War,  every  newly-built  house  not 
standing  on  an  ancient  site  was  held  to  be  "  exclusive  of  the  borough,"  a  resolution 
illustrative  of  the  exclusive  and  intolerant  spirit  of  the  fifteenth  century  burgesses. 
See  Parliamentary  Papers,  1835,  xxiv,  p.  743. 


I04  BURGAGE  TENURE  IN  ENGLAND 

had  its  own  dependent  lands  on  which  houses  stood,  one  would 
exp)ect  to  find  these  held  under  the  same  tenure  as  the  castle. 
Urban  influence  and  previous  tenurial  conditions,  however, 
were  too  strong  for  feudalism;  in  such  cases  the  tenements  of 
the  castle-fee  were  held  in  burgage  tenure.  The  governmental 
and  political  relations  of  such  tenements  and  their  holders  are 
other  matters;  the  character  of  the  tenure  is  clear. ^  The  sheriff 
or  the  castellan  collected  the  rent  of  the  castle  messuages, 
and  the  town  had  no  share  in  it.  At  Norwich  the  lands  in  the 
fee  of  the  castle  were  granted  to  the  citizens  in  1344-45;^  the 
castle  itself  was  still  a  part  of  the  county  in  the  eighteenth 
century.^ 

In  every  borough  there  were  areas,  bits  of  no  man's  land, 
odd  corners,  and  above  all  the  streets,  held  directly  by  no  person 
and  called  the  '  waste.'  To  whom  did  the  waste  belong,  to  the 
commonalty  or  the  lord  of  the  borough  ?  Today  streets  and 
public  places  are  civic  property;    in  the  middle  ages  they  were 

'  See  Cooper,  Cambridge,  i,  pp.  58,  92,  a.  1278  and  1340;  a  gift  of  the  castle 
specifically  excluded  escheats  of  its  tenements. 

In  1316  an  inquisition  ad  quod  damnum  stated  that  all  the  tenants  of  a  messuage 
in  Norwich,  in  the  fee  of  the  castle  of  Norwich  had  "  alienated,  .  .  .  bequeathed, 
and  assigned  "it  from  a  period  to  which  the  jurors'  memories  ran  not  to  the  con- 
trar)',  "  as  citizens  elsewhere  in  the  city  aforesaid  do  with  their  tenements,"  without 
the  license  of  the  sheriff  "  or  other  ministers  of  the  lord  the  king  "  (Stanley  v. 
Mayor,  etc.,  f.  24). 

At  Liverpool  c.  1355  the  Duke  of  Lancaster  granted  a  messuage  to  a  burgess 
which  messuage  the  "  late  constable  of  our  castle  of  Lyverpull  held  of  the  gift  of 
Ivord  Henry,  late  earl  of  Lancaster."  The  services  were  the  same  "  as  the  other 
tenants  of  the  same  town  do  for  like  messuages."  .\s  at  Norwich  the  town  bailiffs 
did  not  collect  the  rents  (Baines,  Liverpool,  p.  154). 

.\t  London  the  juratores  "  dicunt  quod  Turris  Londoniae  cum  Judaismo  et 
aliis  pcrtinentibus  est  de  dominico  domini  regis  et  est  in  manu  sua  "  {K.  H.,  i, 
p.  418).  Grants  of  such  '  pertinentes  '  show  the  tenure  to  have  been  free  bur- 
gage and  the  rents  commonJy  id.  each. 

.'\t  Oswcstr>-  in  1406  the  burgesses  were  "  discharged  from  all  fees  demanded  by 
the  Constable  of  the  castle,"  but  the  constable  got,  at  his  election,  id.  from  every 
'  mansion  house,'  or  original  burgage,  in  the  town  (Cathrall,  Osurstry,  p.  47). 
Oswestr>-  was  once  a  garrison  borough.  See  also  C.  I.  M.,  ibid.,  Henry  VH,  i, 
p.  294,  7  Henry  VII,  Stokecurcy;   ibid.,  v,  p.  46,  Ed.  II,  Bridgwater. 

'  Hudson  and  Tingey,  Records  of  Norwich,  i,  p.  xliii. 

*  Blomefield,  Norfolk,  iv,  p.  122. 


BURGAGE  RENTS  105 

the  borough  lord's.  Unless  he  had  granted  the  waste  ^  to  the 
burgesses  no  one  might  lawfully  '  approve  '  it  without  his  per- 
mission.2  Grants  of  the  waste  during  the  earlier  part  of  our 
period  were  commonly  grants  of  small  plots  to  individuals.^ 
It  may  have  been  that  this  approval  of  the  waste  at  low  rates 
by  the  king  led  the  Norwich  burgesses  to  ask  in  1307  that  it 
be  granted  to  them,  but  their  hour  had  not  yet  come.  Even 
the  land  beneath  the  streets  was  the  lord's.  The  friars  of 
Oxford  had  to  get  leave  to  tunnel  thereunder."*  In  some  boroughs 
the  waste  was  given  to  the  burgesses  in  its  entirety,  at  an  '  early 
period'  in  London,^  in  the  twelfth  century  at  Bristol;^  often, 
however,  the  boroughs  got  the  waste  because  they  took  it,''  a 
silent  process  usually  whose  only  records  were  those  of  attempts 

*  Where  a  borough  had  pasture  land  in  addition  to  the  arable  it  was  commonly 
communal  property  and  was  called  not  waste  but  pasture. 

^  See  Scott,  Berwick,  p.  247,  a.  1307,  "  waste-places  within  the  palisades  "  ; 
ibid.,  p.  250,  a.  1333-34;  H.  M.  C,  Rep.,  5,  p.  515,  33  Henry  VI,  Rye,  vacant 
land  belonging  to  the  king;  Matthews,  Cardiff  Records,  i,  p.  176,  a.  1492,  the 
bailiffs  account  for  "  three  parcels  of  waste  land  lying  within  the  liberties." 

^  C.  P.  R.,  a.  1300,  p.  511,  "  a  void  plot  ...  in  Bedeford,  shaped  like  a  shield," 
152  ft.  long,  2I  ft.  wide  at  one  end,  92  ft.  at  the  other;  the  terms  were  6s.  8d.  down 
and  IS.  a  year  perpetual  rent,  "  payable  at  the  Exchequer  by  the  hands  of  the 
sheriff  ";   see  also  ibid.,  p.  536,  Ravensrod. 

Stanley  v.  Mayor,  etc.,  of  Norwich,  f.  21,  a.  1304;  the  king  allowed  William  de 
Colton  to  enclose  and  build  on  two  places;  the  rent  of  each  was  Jd.,  due  the  king, 
payable  to  the  bailiffs,  and  called  landgable;  cf.  Bedford.  See  also  C.  P.  R., 
a.  1302,  p.  50,  for  similar  cases. 

*  C.  P.  R.,  a.  1318,  p.  168. 

*  Calthrop,  Usages  and  Ctistomes  of  London,  p.  25. 

^  Seyer,  Bristol  Charters,  p.  10  (1188).  Scarborough  got  the  waste  in  1253 
(C.  C.  R.,  i,  p.  417);  Scarborough  claimed  to  be  a  borough  temp.  Henry  I  (Baker, 
Scarborough,  p.  28);  Berwick  in  1307  (Scott,  Berwick,  i,  p.  247);  Norwich  in  1329 
(Blomefield,  Norfolk,  iii,  p.  80);  Southampton  in  27  Henry  IV,  and  so  on. 

^  Sometimes  the  burgesses  had  the  grace  to  petition  for  a  grant  of  the  waste. 
At  Norwich  in  1307  the  burgesses  asked  in  vain.  No  whit  discouraged  the  com- 
munity proceeded  to  act  as  if  the  waste  were  its  own  and  in  1329  was  in  conflict 
with  the  king's  escheator  south  of  Trent,  houses  having  been  built  on  the  waste 
"  by  grant  of  the  city."  Edward  II's  reign  afforded  an  excellent  opportunity  for 
such  unlawful  *  approvals  '  of  the  waste;  their  extent  can  be  seen  from  their  rents, 
which  in  1307  were  9s.  2d.  and  in  1329  were  £9  iis.  8d.  The  dispute  was 
ended  by  the  king's  granting  the  waste  to  the  citizens  (see  Blomefield,  Norfolk, 
iii,  p.  80). 


Io6  BURGAGE  TENURE  IN  ENGLAND 

to  check  it,'  attempts  which  often  resulted  in  further  extension 
of  the  tenure  and  exclusion  of  the  borough  lord. 

*  See  Atcheson,  Case  of  the  Borough  of  Peter sfield,  a.  1613.  Among  other  usurpa- 
tions the  burgesses  had  approved  the  waste  without  leave.  The  justices  refused 
to  dedde  the  ownership  of  houses  on  the  waste,  advising  the  borough  lord  to  pro- 
ceed at  common  law  (p.  16).  The  modem  legal  view  was  apparently  taking  the 
place  of  the  old.  At  Sandwich  the  waste  seems  to  have  been  considered  communal 
property.  The  mayor  and  commonalty  "  possunt  eciam  et  solent  edificare,  si 
voluerint,  areas  vacuas"  (see  Boys,  Sandudch,  p.  534).  See  Maitland's  views 
and  comments  concerning  the  waste  in  Cambridge  in  his  Tovmship  and  Borough, 
pp.  187-189.  Few  borough  courts  leet  were  held  in  the  later  part  of  our  period 
without  some  one  being  presented  for  '  purpresture,'  i.  e.,  unlawful  approval  of 
the  waste,  the  most  common  form  being  encroachment. 


CHAPTER   III 
MOBILITY 

"  The  mercantile  spirit  of  the  boroughs  affects  the  houses 
.  .  .  and  it  is  in  the  boroughs  that  landownership  first  reaches 
a  modern  degree  of  purity  and  intensity."  ^ 

So  far  in  this  discussion  of  the  tenure  the  mobihty  of  the 
burgage  tenement,  that  is  the  burgess's  power  to  ahenate  or 
divide  his  messuage,  has  been  presupposed  but  not  defined. 
We  shall  now  try  to  deal  with  this  subject  in  detail;  to  show 
where  and  to  what  extent  a  burgage  tenement  might  be  divided, 
sold,  or  devised;  whether  such  liberty  existed  in  all  the  bor- 
oughs, and  if  so  under  what  (if  any)  conditions;  that  is,  where 
and  whether  the  mobihty  of  the  messuage  lay  under  complete 
or  partial  restriction,  or  under  no  restriction  at  all.  The  general 
line  of  treatment,  therefore,  will  be  freedom  of  division;  of  aliena- 
tion, or  buying  and  selling;  and  most  important  or  at  least 
most  significant  of  all,  freedom  of  devise. 

It  may  be  suggested  that  liberty  to  divide  means  liberty  to 
sell.  One  might  divide  and  still  not  sell,  in  appearance  at  least. 
The  early  records  of  division  are  mostly  of  this  sort;  the  grantor 
'  enfeoffs,'  just  as  outside  of  the  boroughs,^  though  in  substance 
the  grant  is  in  no  way  feudal.  The  prevalent  view  seems  to 
be  that  there  was  no  restriction  on  the  mobihty  of  the  burgage 
tenement.  So  Bracton  virtually  states,  and  viewing  the  boroughs 
in  a  mass  and  from  a  distance  the  idea  is  in  the  main  correct, 
for  most  of  the  older  boroughs  at  least.  An  individual  view 
of  the  boroughs  from  near  at  hand  will,  however,  disclose  many 
exceptions  to  and  divergences  from  any  general  rule  of  mobihty, 
especially  in  respect  to  freedom  of  devise. 

1  Maitland,  Township  and  Borough,  pp.  71-72. 

2  He  still  enfeoffs  for  that  matter. 


I08  BURGAGE  TENURE  IN  ENGLAND 

Divisibility  of  Burghal  Realty 

The  attitude  of  the  feudal  land  law  toward  division  of  a  fief  ^ 
is  too  well  known  to  need  description.  Exactly  opposite  is  the 
attitude  of  the  land  law  in  the  older  boroughs,  where  there 
seems  to  have  been  no  limit  whatever  on  extent  or  manner  of 
division,  not  merely  of  land  but  of  houses.  In  the  ancient 
boroughs  the  evidence  for  division  comes  mostly  from  grants. 
The  customals  do  not  concern  themselves  with  a  matter  of 
common  right  and  universal  knowledge.^  The  length  to  which 
division  might  be  carried  is  seen  in  a  grant  of  a  sixth  of  a  six- 
teenth of  a  tenement  in  London,'  and  one  forty-eighth  of  a  bur- 
gage in  Liverpool.'' 

As  with  many  other  customs,  divisibility  in  the  chartered  and 
created  boroughs  appears  to  have  a  tinge  of  artificiality  about 
it.  In  the  older  towns  burgesses  might  divide  as  fancy  led  them; 
in  created  boroughs  it  seems  often  to  have  been  taken  for  granted 
that  he  who  divided  a  messuage  would  do  so  evenly.  The 
charters  to  such  boroughs  contained  permission  to  divide  the 
burgages  and  conferred  the  same  privileges  on  him  who  had  half 
a  burgage  as  on  him  who  had  held  it  all.^     It  has  been  suggested 

'  Except  among  co-heiresses. 

*  \  grant  of  a  '  moiety  of  land  '  in  Gloucester,  c.  1200  (Stevenson,  Records  of 
Gloucester,  p.  84).  .At  Bridgwater  in  1245  ^  grant  of  "  half  a  messuage  "  conveyed 
"  the  whole  of  the  solarium  with  half  of  the  bedchamber  and  of  the  curtilage  " 
(H.  M.  C,  Rep.,  3,  p.  311).  It  seems  that  the  grantor  retained  the  cellar  and  half 
the  yard.  The  two  tenants  shared  the  attic.  I-or  extensive  division  see  also 
Parkin,  Lynn,  p.  123;  K.  II.,  ii,  p.  357,  and  Maitland's  comments  in  his  Touuship 
and  Borough;  Bateson,  Records  of  Leicester,  i,  p.  390,  a.  1291-92,  release  of  a  third 
of  a  messuage;  Hudson  and  Tingcy,  Records  of  Nora-ich,  i,  p.  253,  a.  1292-95, 
"  medietatem  .  .  .  mesuagii  ";  H.  M.  C,  Rep.,  3,  p.  57  and  Rep.,  5,  pp.  506,  601 
for  Southampton,  Dartmouth,  and  Rye,  where  "  a  room  in  a  tenement  "  was 
granted.  Weare,  Thornbury,  and  Richmond  show  grants  of  halves,  thirds,  and 
quarters  of  messuages  (H.  M.  C,  Rep.,  3,  p.  306,  20  Ed.  Ill;  C.  I .  M.,  Henry  VH, 
i,  p.  100,  I  Henry  \II). 

^  C.  I.  M .,  Henry  VH,  i,  pp.  241  and  382.  The  property  seems  to  have  been  a 
wharf  or  a  warehouse  and  wharf.  It  is  called  '  le  Old  Wol  Key  ';  in  another 
source  (Riley,  Munimenta  GildhaUac,  i,  p.  5S0)  '  Wolkey  '  (' Wool  Quay ');  and 
the  sixteenth  is  probably  one  share  held  in  jMjrtions. 

*  Picton,  Liverpool  Records,  i,  p.  12,  a.  1346. 

'  Bennett,  Trukeshury,  p.  321   {a.  1147-83).     Holders  of  half-burgages  were  to 


MOBILITY  109 

by  an  eminent  scholar  ^  that  "  there  was  no  doubt  a  limit  to  this 
process  "  of  division,  as  a  twelve-foot  burgage  was  necessary 
at  Preston  to  give  its  holder  burgess  rights.'^  This  Hmit,  how- 
ever, concerned  frontage  only,  which  division  might  not  affect 
at  all;  the  threatened  loss  of  burgess  rights  would  have  an 
effect  in  proportion  to  their  value.  The  Cardiff  charter  gave 
burgess  rights  to  those  who  held  half-burgages,^  which  were 
probably  halves  of  original  messuages,  a  simpler  and  more 
effective  method  than  a  limitation  of  frontage  for  restricting 
burgess  rights  to  the  responsible  citizens.* 

As  tenements  might  be  divided,  so  their  parts,  or  new  tene- 
ments, as  we  may  regard  them,  might  be  reunited,  as  at  Scar- 
borough 5  and  at  Cambridge.^  At  the  latter  town  it  is  apparent 
that  the  various  parts  (or  messuages)  when  joined,  formed  but 
one  messuage;  unlike  the  custom  at  Scarborough  but  probably 
in  accordance  with  the  usage  elsewhere,  the  hawgable  of  the 
new  messuage  seems  to  have  been  the  sum  of  the  hawgables 
of  its  various  parts.  This  was  the  reverse  process  of  divisibility; 
its  complement  was  holding  in  coparcenary,  for  when  a  burgage 
descended  to  co-heirs  it  must  be  so  held  or  else  divided.  Copar- 
cenery  was  a  recognized  though  not  a  common  form  of  holding 
under  burgage  tenure;  entered  into  involuntarily,  the  fluidity 
of  urban  realty  rendered  its  avoidance  even  easier  than  in  the 

have  the  same  rights  as  holders  of  whole  burgages.  Cardiff  has  the  same  provision 
in  its  charter;   the  Earl  of  Gloucester  was  lord  of  each  borough. 

Tait,  Mediaeval  Manchester,  p.  66,  a.  1301:  "  quilibet  potest  vendere  .  .  .  sive 
maius,  sive  minus,  sive  totum  ";  in  the  fifteenth  century  there  were  many  half- 
burgages  there  {ibid.,  p.  68). 

Wardell,  Leeds,  app.,  p.  iv:  "  Whoever  shall  purchase  any  part  of  any  such 
toft  ...  is  as  free  as  if  he  have  purchased  the  whole  toft  ";  H.  M.  C,  Rep.,  8,  p.  269, 
5  Rich.  I,  Pontefract:  "  Quicumque  emerit  aliquam  partem  alicujus  tofti,"  etc. 

^  Professor  Tait,  in  his  Mediaeval  Manchester,  p.  68. 

^  The  usual  formula  was  '  may  make  free  burgesses  (or  free  tenants)  by  20  ft. 
frontage,'  as  at  Im'stiogue,  40  ft.,  as  at  Kilkenny,  etc. 

^  Matthews,  Cardiff  Records,  i,  p.  12. 

^  There  was,  however,  a  large  amount  of  more  minute  division  in  Cardiff. 

^  Brown,  Yorkshire  Inquisitions,  i,  p.  21,  a.  1250;  the  previously  quoted  case  in 
respect  to  the  action  against  the  abbot  of  Citeaux.     See  p.  71,  note  2. 

*  R.  H.,  ii,  p.  357:  "  unum  messuagium  in  .  .  .  Cantabrigia  .  .  .  quod  mes- 
suagium  idem  T.  de  diversibus  hominibus  emit  per  particulas,  unam  scilicet  partem 
de  R.  .  .  .  et  aliam  partem  de  .A..,"  4d.  hawgable. 


no  BURGAGE  TENURE  IN  ENGLAND 

country.  At  Ipswich  in  1254-95  the  borough  court  decided 
that  when  a  burgess  left  daughters  only,  "  his  lands  and  tene- 
ments shall  dessend  by  the  Custome  to  them  in  coparcenery,"  ^ 
but  the  scanty  evidence  for  the  existence  of  this  form  of  holding 
comes  from  records  of  transfer  rather  than  customals.^  Joint 
tenancy  and  tenancy  in  common  seem  commoner  than  holding 
in  coparcenery.  These  were  dissoluble  only  by  mutual  consent.' 
From  what  has  gone  before  it  may  seem  as  if  there  were  no 
restriction  whatever  on  divisibility  other  than  forfeiture  in  some 
boroughs  of  burgess  rights  by  one  whose  tenement  fell  below 
the  minimum  frontage.  Complete  freedom  to  divide  one's 
messuage,  however,  existed  only  in  the  boroughs  where  realty 
might  be  alienated  without  impediment  among  the  living,* 
and  for  only  one  generation  in  nearly  all  the  created  boroughs. 
Even  in  these  the  '  divide  '  of  the  charters  seems  to  mean  divide 
once  and  no  more.  In  the  second  and  subsequent  generations 
division  was  limited  to  purchased  tenements,  though  probably 
in  a  few  of  these  boroughs  inherited  tenements  might  be  divided 
among  the  heirs  themselves  or  among  others  with  the  heirs' 
consent.* 

Free  Sale 

This  limitation  on  divisibility  in  certain  boroughs  brings  us 
to  a  distinction  in  the  nature  of  the  lands  at  many  places,  a 

'  Bacon,  Annalls  of  Ipsunche,  p.  8.  Such  tenants  must  essoin  together  {ibid., 
p.  19). 

*  .\t  Southampton,  for  instance,  temp.  Ed.  I  is  a  conveyance  of  a  "  pctrinum 
\i.  c,  sohirium]  cum  uno  cellario  "  by  two  brothers  and  three  of  their  sisters,  judging 
from  the  names,  to  a  fourth  sister  and  her  husband  (H.  M.  C,  Rep.,  11,  app.,  pt.  3, 
p.  56);  the  family  appears  to  have  held  the  messuage  as  a  unit.  For  the  custom  of 
descent  of  realty  see  Gross,  "  Intestacy  in  Mediaeval  Boroughs  "  {Antiquary,  1885). 

'  .At  Winchester,  1 103-15,  we  find  "  i  domus  modo  manent  ibidem  iiii  homines  " 
{D.  B.,  iv,  Liber  Winton',  f.  2),  and  another  domus  held  by  father  and  son  {ibid., 
f.  8).  .\t  Maldon  a  record  speaks  of  a  tenement  in  two  men's  hands  (C  P.  R., 
a.  1401-05,  p.  308),  and  at  Colchester  another  concerns  two  tenements  held  con- 
jointly by  five  men  (Benham,  Red  Paper  Book  of  Colchester,  p.  99).  For  copar- 
cenery in  the  country,  see  Statutes  of  the  Realm,  i,  p.  77. 

*  Sec  lx;low.  Free  Sale  (p.  no),  and  Restricted  Sale  (p.  114). 

*  Hence,  though  not  exclusively,  the  halves  and  quarters  of  messuages  so  fre- 
quently met  with.  Thirds  of  burgages  probably  arose  out  of  dower.  Fractional 
or  any  sort  of  division  depended  largely  on  any  particular  borough's  rule  for  descent 
of  realty. 


MOBILITY  III 

distinction  which  was  not  confined  to  the  charter-created  towns 
but  which  affected  many  of  the  older  boroughs  of  England 
throughout  the  middle  ages.  It  was  based  on  the  manner  in 
which  tenements  were  acquired,  '  lands  of  inheritance '  or 
'  lands  of  purchase,'  the  significance  of  which  division  lay,  as 
far  as  sale  was  concerned,  in  its  connection  with  the  kin's  pre- 
emption or  retrait  lignager.  Wherever  the  kin's  preemption 
existed  sale  was  Hmited  ^  to  lands  of  purchase,  elsewhere  it  was 
free. 

The  evidence  as  to  buying  and  selling  messuages  or  parts 
thereof  comes  mainly  from  three  kinds  of  sources:  grants  and 
releases  of  tenements;  charters  and  customals;  and  inquest- 
findings  in  the  course  of  legal  processes,  especially  those  cases 
taken  to  the  royal  courts  by  writ  of  error  in  judgment.^  State- 
ment in  a  charter  or  a  customal  that  sale  was  free  is  conclusive 
and  final  evidence,  for  though  customals  might  be  changed  and 
charters  amended  such  change  and  amendment  as  touched 
the  tenure  were  nearly  always  toward  freedom  and  never  the 
reverse.  The  evidence  drawn  from  grants  and  releases  is  not 
so  satisfactory,  for  in  many  boroughs  some  of  the  messuages 
might  be  sold  freely  and  some  might  not.  The  evidence  of  a 
large  number  of  grants  in  the  same  borough,  even  though  none 
should  contain  any  mention  of  restriction  on  sale,  does  not 
necessarily  prove  that  sale  therein  was  free;   they  may  all  relate 

'  The  amount  of  limitation  depended  on  location  and  period. 

2  Appeals  from  the  decisions  of  a  borough  court  might  be  heard  before  a  royal 
justice  in  his  court  (oyer  and  terminer)  in  the  borough  or  be  argued  before  the 
bench  at  Westminster.  The  reports  in  the  Year  Books  and  the  Placitorum  West- 
mon.  Abbreviatio  show  that  the  justices  usually  accepted  without  question  the  law 
as  declared  by  a  jury  of  burgesses. 

Appeals  from  a  decision  of  the  Hustings  in  London  were  heard  by  a  bench 
composed  of  the  mayor,  or  mayor  and  sheriffs,  with  whom  were  associated  certain 
assessors  named  in  the  commission.  They  sat  as  a  court  of  oyer  and  terminer. 
See  C  P.  R.,  a.  1282,  pp.  46,  47  et  pass.;  also  R.  R.  Sharpe,  Court  of  Husting,  introd., 
p.  iii;  for  the  Hustings  as  a  court  of  record  see  Riley,  Miinimenta  Gildhallae,  iii, 
pp.  16,  17. 

For  the  '  gavelet,'  from  which  the  holder  could  not  be  ejected  for  a  year  and  a 
day  for  default  in  rent,  and  which  the  demandant  might  then  hold  for  the  following 
year  and  day,  see  ibid.,  iii,  p.  22;  C.  A.  D.,  i,  p.  200.  For  the  Statute  of  Mer- 
chants of  Acton  Burnell,  see  Statutes  of  the  Realm,  i,  p.  165. 


1 1 2  BURGAGE  TENURE  IN  ENGLAND 

to  lands  of  purchase.  Unless  such  records  contain  internal 
evidence  that  they  concern  lands  of  inheritance  they  prove 
nothing  one  way  or  the  other  in  respect  to  freedom  of  sale. 

From  this  sort  of  evidence,  as  found  in  conveyances  of  realty, 
it  seems  probable  that  sale  was  free  at  Leeds  ^  and  Pontef ract ;  * 
there  is  little  doubt  that  it  was  free  at  Gloucester  ^  and  Leicester.* 
At  Winchester  ^  in  the  later  part  of  the  thirteenth  century  sale 
was  unrestricted,  though  it  seems  that  such  freedom  was  of  very 
recent  lawfulness.^  At  Lynn '  and  probably  at  Bridport ' 
the  impediment  of  the  kin's  preemption  was  absent.  It  is 
scarcely  necessary  to  add  that  sale  was  free  in  such  places  as 
London,  Bristol,  and  Oxford,  not  alone  because  they  were  the 
more  important  boroughs,  but  because  their  abundant  and  well- 
known  records  prove  it.^ 

*  See  VVardell,  Municipal  History  of  Leeds,  app.,  p.  iv.  Any  burgess  may  sell  his 
land  to  whom  he  will.     It  is  a  question  whether  he  might  so  act  with  inheritance. 

^  H.  M.  C,  Rep.,  8,  p.  269,  5  Rich.  I.  The  charter  draws  no  line  between  pur- 
chase and  inheritance.     Pontefract,  however,  had  the  Grimsby  customs. 

'  H.  M.  C,  Rep.,  12,  app.,  pt.  9,  p.  409:  A.  "  emit  [terram]  de  Baldwino  filio 
sacerdotis:  tenendam  in  ...  hereditate."  Filius  sacerdoiis,  filius  nullius,  how- 
ever. Stevenson,  Records  of  the  Corporation  of  Gloucester,  pp.  138-150,  c.  1230, 
shows  no  restriction  on  sale,  with  one  possible  exception,  for  which  see  p.  121,  n.  2. 

*  Thompson,  Leicester,  p.  69,  a.  1254;  a  rent  "  by  hereditary  right  "  was  sold. 

^  C.  /.  M.,  i,  p.  283,  56  Henry  III:  a  "  messuage  ...  is  not  the  king's  escheat 
...  for  the  king  gave  it  to  ...  G.  and  his  heirs,  and  he  had  a  son  .  .  .  who 
.  .  .  sold  it."     In  other  words  a  tenement  of  inheritance  was  sold. 

'  The  kin's  rctrait  seems  to  have  been  legal  early  in  the  thirteenth  century. 

^  Parkin,  Lynn,  pp.  123,  173,  205  (a.  1273). 

'  H.  M.  C,  Rep.,  6,  p.  480,  temp.  Ed.  I.  An  heir  granted  "  lands,  tenements, 
and  mills  "  formerly  belonging  to  his  father  and  therefore  the  son's  inheritance. 

»  See,  for  Bristol,  Bicklcy,  Little  Red  Book  of  Bristol,  Wadlcy.  Great  Orphan  Book, 
etc.;   for  Oxford,  Rogers,  Oxford  City  Documents,  1 268-166 j. 

It  may  be  that  the  kin's  preemption  existed  in  every  borough  £is  late  as  the 
twelfth  century.  Miss  Hateson  {Borough  Customs,  ii,  p.  61),  quoting  from  KeUx 
Liebermann's  Gesetzc  der  Angvl-Sachscn,  London  Libertas,  1133-54,  gives  an 
instance  of  the  kin's  retrait  in  London  at  that  period. 

liracton  (I)c  Leg.,  iv,  pp.  262  f.)  tells  us  that"  item  \mortd' ancestor]  cadit  .  .  , 
propter  consuetudinem  loci,  ut  in  .  .  .  burgis  .  .  .  et  tenemcntis  quae  sunt  de 
perquisito,  sicut  in  .  .  .  civitate  London  ct  alibi."  Mori  d'ancestor  '  fell  '  for 
tenements  of  inheritance  too  in  many  boroughs,  yet  Bracton  says  nothing  of 
such.  Indeed  he  stumbles  more  than  once  in  his  comments  on  the  customary  law 
of  the  boroughs  (see  p.  130,  note  2).  Retrait  lignager  had  disappeared  in  London 
long  before  Bracton's  day;  there  is  no  trace  of  it  in  the  Usages  and  Customes  (Cal- 
throp).  Liber  Custumarum  (Riley),  or  Court  of  Husting  (Sharpe). 


MOBILITY  1 1 3 

Dublin  followed  Bristol  as  a  borough  of  unrestricted  sale, 
and  Limerick,  Waterford/  Cork,  and  Rathcool  followed  Dublin. 
The  charters  to  the  baronial  boroughs  of  Congleton  ^  and  Castle 
Rising,^  the  episcopal  borough  of  Chard,*  and  the  royal  borough 
of  Hull  ^  allowed  free  sale  for  all  tenements.  At  Wycombe,® 
Altringham,'  and  Rhuddlan  ^  freedom  of  sale  was  without  limi- 
tation or  was  directly  stated  to  be  allowed  in  respect  to  an 
heredity.  Some  of  these  illustrations  are  from  the  charters  of 
boroughs  in  which  there  was  often  a  prohibition  of  alienation 
in  mortmain.^  In  the  older  and  larger  boroughs  sale  was  regu- 
lated not  by  charter,  but  by  custom,  which  the  burgesses  could 
change.^"  It  was  just  as  well  for  them  not  to  have  certain  provi- 
sions of  their  land  law  incorporated  in  any  charter,  otherwise 
change  might  be  difficult.  In  1200  King  John  gave  a  charter 
to  each  of  the  two  very  similar  boroughs,  Nottingham  and 
Northampton,"  whose  land  laws  were  probably  identical.     In 

'  "  That  all  fermes  did  enswe  the  nature  of  fee  simple  landes  within  the  citie  " 
(H.  M.  C,  Rep.,  10,  app.,  pt.  5,  p.  2,33)  probably  refers  to  the  fact  that  the  dis- 
tinction between  purchase  and  inheritance  did  not  obtain. 

^  Head,  Congleton,  p.  34,  a.  1272:   the  charter  was  from  Henry  de  Lacy. 

^  Parkin,  Lynn,  p.  205:  from  the  Earl  of  Sussex's  charter  of  ante  27  Henry  III. 

*  C.  P.  R.,  a.  1286,  p.  216:  the  charter,  confirming  that  of  his  predecessor,  was 
given  by  the  bishop  of  Bath  and  Wells  in  1280. 

^  Sheahan,  Hull,  p.  50,  a.  1299:  Hull  (Kingston-upon-Hull)  was  almost  the  only 
borough  of  royal  foundation.  Overton  was  made  a  liber  btirgus  by  the  king  in  1291. 
The  bastides  of  Guienne  may  have  suggested  his  gift  of  wood  from  his  forests  to 
build  the  houses.     See  Madox,  Firma  Biirgi,  p.  39. 

^  Plac.  Westmon.  Abbr.,  p.  188,  3  Ed.  I:  "  Et  juratores  requisiti  si  consuetudo  sit 
in  villa  de  Wycumb  quod  aliquis  de  etate  xiii  annorum  possit  terram  suam  dare 
vendere  .  .  .  dicunt  quod  quam  cito  habeat  plus  quam  xii  annos  potest  secundum 
consuetudinem  ville  terram  dare,  vendere  ..." 

^  Parliamentary  Papers,  1835,  xxvi,  p.  2574,  c.  1290:  "  quod  singulus  burgensis 
burgagium  suum  possit  vendere,  invadiare,  dare  .  .  .  cuicunque  vel  quibus- 
cunque  voluerit." 

*  Ibid.,  1835,  xxvi,  p.  2838:  "  unus  puer  masculus  vel  foemina  potest  vendere 
hereditatem  suam  cum  pervenerit  ad  etatem  xiiii  annorum." 

*  See  Gross,  "  Mortmain  in  Mediaeval  Boroughs  "  {American  Historical  Review, 
July,  1907).  Alienation  to  Jews,  king's  ofiicials,  and  infrequently  to  chief  lords, 
was  forbidden  in  some  towns.  Lands  were  usually  given,  not  sold,  to  the  church; 
one  could  trust  the  religiosi  for  that. 

'"  See  Stubbs,  Select  Charters,  pp.  iio-iii. 
"  Ibid.,  pp.  308-311. 


114  BURGAGE  TENURE  IN  ENGLAND 

the  former  the  charter  fixed  a  restriction  on  sale,  which,  of  course, 
could  not  be  legally  removed  without  the  king's  permission ;  in 
the  latter  the  matter  was  left,  as  in  most  of  the  ancient  boroughs, 
to  the  burghal  land  law.^ 

Restricted  Sale 

For  this  part  of  our  subject  the  sources  are  mainly  the  borough 
customals,  with  occasional  grants  of  real  property  and  records  of 
courts,  where  the  grant  may  specify  which  sort  of  tenement  was 
the  subject  of  a  sale,  or  the  court  record  may  contain  a  dispute 
in  respect  to  an  alienation  followed  by  a  decision  of  its  legality 
or  the  reverse.  This  order  of  naming  the  sources  will  be  in 
general  the  order  of  treatment,  though  chronological  sequence 
is  of  little  moment  in  regard  to  customals,  unless  there  should 
be  more  than  one  for  a  single  borough  or  evidence  that  there 
has  been  a  change. 

Sale  was  restricted  by  the  letter  of  the  law  to  lands  of  purchase 
at  Cardiff  ^  and  Tewkesbury,^  whose  charters  from  the  Earl 
of  Gloucester  embodied  apparently  the  same  customs.  Preston  * 
and  Pembroke  ^  had  the  same  restriction,  though  probably 
lands  of  inheritance  also  might  be  sold  with  the  heir's  consent. 
Restrictions  on  sale  were  almost  universal  at  created  baronial 
boroughs  on  or  near  the  Welsh  marches,  though  by  no  means 
limited  to  that  locality.^  There  were  exceptions,  however, 
as  at  Hereford,  a  royal  borough,  where  one  might  sell  lands 

'  Hardy,  Rotidi  Charlarum,  p.  45 :  "  et  de  tern's  suis  et  tenuris  quae  infra  burgum 
sunt  rectum  eis  teneatur  secundum  consuetudinem  burgi." 

'  Matthews,  Cardiff  Records,  i,  p.  12:  "  each  burgess  may  at  his  will  .  .  .  sell 
or  in  any  other  manner  alien  his  burgage  which  is  of  his  purchase,  to  whomsoever 
he  will.  .  .  .  And  if  that  burgage  shall  have  been  of  inheritance,  his  own  heir  or 
heirs  shall  have  it  ";  charter  ante  1147. 

'  Bennett,  Tewkesbury,  p.  321. 

*  Hardwick,  Preston,  p.  260;  Fishwick,  Preston,  p.  16:  "  when  a  burgess  shall  be 
desirous  to  sell  his  burgage,  his  next  of  kin  is  to  buy  that  burgage  before  any  other  " 

(<■•  1173)- 

'  C.  P.  R.,  a.  1378,  p.  107,  "  si  quis  burgensium  .  .  .  anno  uno  et  die  domum 
vei  terram  sine  calumpnia  tenuerit  .  .  ." 

'  Wearmouth  for  instance  had  the  same  custom  (Bateson,  Borough  Customs, 
ii,  p.  91):  "  burgcnsi  licet  .  .  .  vcndere  .  .  .  terram  suam  .  .  .  sine  concessu 
heredis  sui  quam  ipse  de  proprio  catallo  suo  emerit." 


MOBILITY  1 1 5 

of  purchase  or  of  inheritance  "  when  and  to  whomsoever " 
he  pleased.^  Though  sale  of  inheritance  was  definitely  forbidden 
under  ordinary  conditions  and  without  the  heir's  consent  at 
Cardiff  and  Tewkesbury,  a  subsequent  clause  of  the  charter 
(or  customal)  allowed  its  ahenation  in  necessity.  In  both 
towns  this  took  the  form  of  the  would-be  seller's  pubhcly  asking 
his  next  kin  to  *  find  him  necessaries  '  ;  these  not  forthcoming 
the  tenement  might  be  sold.^  Though  there  is  no  mention  of 
such  a  hmit  of  time  at  the  two  boroughs  in  question,  in  the 
older  boroughs  a  year  and  a  day's  undisturbed  possession  of  an 
inherited  tenement  gave  the  buyer  security  against  ejectment 
by  the  next  of  kin. 

The  Northampton  customal  is  very  detailed  in  respect  to  the 
kin's  preemption  and  may  be  used  to  illustrate  this  feature  of 
the  old  Germanic  land  law  as  developed  by  the  mediaeval 
English  burgesses.  At  that  borough  he  who  bought  a  tenement 
and  held  it  unchallenged  {sine  calumpnia)  by  the  seller's  kindred 
for  a  year  and  a  day  was  thereafter  secure  in  his  purchase  if 
the  sale  were  otherwise  regular.^  At  Northampton  and  else- 
where the  heir  was  given  every  chance  to  exercise  his  retrait; 
if  he  were  under  age,  or  beyond  the  four  seas,  or  in  jail,  the  year 
and  day  did  not  begin  to  run  until  he  came  of  age,  or  returned 
from  abroad,  or  was  enlarged.  Northampton  was  unhke  nearly 
all  other  boroughs  of  restriction  in  that  there  were  occasions 
when  no  distinction  was  drawn  between  lands  of  purchase  and 
lands  of  inheritance,  the  kin's  retrait  applying  to  both  except 
when  the  seller  held  tenements  of  each  sort.  He  who  held  mes- 
suages of  either  sort  must,  when  he  needed  to  sell  them,  offer 
the  tenements  first  to  the  next  of  kin,^  and  the  time  during 

1  Johnson,  Customs  of  Hereford,  p.  25. 

2  Matthews,  Cardiff  Records,  i,  p.  109;  Bennett,  Tewkesbury,  p.  321.  If  a 
burgess  "  through  distress  of  circumstances  "  was  "  obliged  to  sell  or  mortgage 
his  burgage,"  he  ought  "  for  a  first,  a  second  or  third  time,  to  ask  his  heir  to  find 
him  necessaries." 

^  Markham,  Liber  Custumarum,  p.  17:  "If  any  man  resonably  after  the  usages 
and  the  lawes  of  the  town  of  Norhampton  and  bi  wittnesse  of  the  courte." 

*  Ibid.,  p.  18:  "  If  any  man  have  any  londes  tenementes  or  rentes  of  his  heritage 
or  of  purchase  and  he  that  londe  tenemente  or  rente  nedith  to  sellyn  his  kyne  allwey 


Il6         BURGAGE  TENURE  IN  ENGLAND 

which  the  heir  had  the  option  of  buying  was  apparently  four 
weeks,  depending  on  the  frequency  of  sittings  of  the  borough 
court.  If  such  a  tenement  had  been  sold  before  being  offered 
to  him  the  grantor's  heir  might  come  to  court  within  the  first 
four  pleas,  tender  the  buyer  what  he  had  paid  and  take  the 
messuage,  but  he  must  make  the  payment  within  eight  days. 
If  the  sale  should  have  been  made  out  of  court,  that  is  clan- 
destinely, there  was  no  limit  to  the  period  during  which  the 
heir's  option  ran.  To  prevent  fraud  on  an  heir  both  buyer  and 
seller  must  swear  that  the  sale  is  bona  fide  and  that  the  price 
offered  will  be  really  paid.' 

If  a  burgess  should  hold  tenements  of  both  sorts  he  might 
sell  those  which  he  had  bought  without  hindrance,  and  to  whom 
he  would.2  Under  stress  of  poverty  it  seems  that  any  sort  of 
messuage  might  be  sold.  The  clause  of  the  customal  which 
deals  therewith  is  not  remarkably  lucid,  but  it  is  plain  that  an 
heir  must  either  find  the  holder  '  necessaries  '  or  see  the  tenement 
sold.  If  sold,  the  heir  had  the  option  of  buying  it  at  the  price 
a  stranger  would  give,  and  the  limit  for  paj-ment  was  eight 
days,  as  in  the  case  of  forced  sale.''  Under  two  conditions  the 
kin's  retrail  was  inoperative  at  Northampton:  a  burgess  might 
give  a  part  of  his  tenement,  of  whichever  sort  it  might  be,  to 
his  daughter  '  in  free  marriage,'  *  or  he  and  his  wife  might  sell 

shall  be  moste  nexte  to  aske  the  kate  "  (purchase).  The  '  nedith  '  may  refer  to 
'sale  in  necessity';  a  later  clause,  however,  provided  for  that  with  its  conditions. 

^  Markham,  Liber  Cuslumarum,  p.  i8:  the  heir  may  recover  as  soon  as  the  sale 
is  "  shewed." 

As  the  proceedings  at  Cardiff  and  Tewkesbury  were,  no  doubt,  in  the  borough 
court  the  '  three  summons  '  thereat  may  be  compared  with  the  '  four  picas  '  at 
Northampton,  three  weeks  and  four  weeks  rt^j>ectively  in  all  probability,  though 
Cardiff,  not  being  a  commercial  borough,  may  have  held  its  court  at  the  common 
intervals  of  three  weeks. 

'  Ibid.,  p.  24:  "  though  his  heirc  wolde  hym  withsaync."  Usually  '  purchase  ' 
gets  no  such  respectful  mention. 

'  Ibid.,  p.  iQ.  If  one  "  forpovcrte  or  with  owte  poverte  "  wishes  to  sell  his  land, 
"  his  sone  his  doughter  kynne  the  chefe  lorde  "  shall  not  prevent  it.  "  And  if  any 
man  wylle  his  londe  tenement,  or  rente  taken  or  gcven  to  fynde  hym  his  sustinaunce 
tcrme  of  his  lyfe  he  that  is  of  his  blode  shalbe  most  nexte  than  astraunge  man  so  he 
woU  done  and  fynden  in  the  same  maner  as  a  straunge  man  wolle  done." 

*  Ibid.,  p.  25. 


MOBILITY  117 

the  realty  which  the  latter  brought  at  their  marriage,  whether 
it  had  been  of  inheritance  or  purchase.^  Rents  were  always 
subject  to  the  same  distinction  and  restriction  as  lands  and 
tenements,  and  the  heir  who  '  withsaid  '  (gainsaid)  must  be 
*  most  next '  of  kin.^ 

Northampton  had  all  the  restrictions  of  other  boroughs,  and 
in  addition  a  few  of  its  own.  Elsewhere  in  practically  all  of 
the  older  restricted  boroughs,  Portsmouth  excepted,  no  obstacle 
lay  in  the  way  of  selling  purchase.  To  sell  inheritance  was 
forbidden  at  Bury  Saint  Edmunds  in  Abbot  Sampson's  charter 
of  1190,^  and  in  the  charter  extorted  from  the  monks  in  1327; 
the  latter  dealt  with  the  matter  in  greater  detail.*  Sale  was 
restricted  at  Portsmouth;  ^  Dover  had  the  same  custom  and  in 
addition  was  apparently  the  only  borough  of  restriction  where 
a  penalty  was  provided  by  the  customal  for  evasion  or  defiance 

1  Markham,  Liber  Custumarum,  p.  19. 

^  That  part  of  the  customal  which  concerns  the  tenure  is  sometimes  haphazard 
and  tangled  and  in  the  present  case  at  least  has  required  much  labor  to  interpret 
it.  The  clauses  with  reference  to  sale  in  '  need  '  and  in  '  poverty  '  are  especially 
muddled.  Either  the  burgesses  were  in  the  same  state  or  the  clauses  are  not 
contemporaneous.  Was  the  heir's  consent  necessary  to  sale  of  purchase  only 
when  its  holder  was  obliged  to  sell  and  not  when  he  sold  it  voluntarily  ?  In  most 
other  cases,  whether  the  borough  customs  were  compiled  in  Latin  (as  they  commonly 
were),  in  French  of  a  fearful  sort,  or  in  English,  they  are  clear  enough;  whatever 
the  language  of  writing,  it  is  apparent  that  the  language  of  thought  was  English. 

^  Dugdale,  Monasticon,  iii,  p.  154. 

*  See  Arnold,  Memorials  of  St.  Edmund's  Abbey,  iii,  pp.  309,  311.  The  next  of 
kin  to  him  "  who  shall  sell  his  land  or  tenement  .  .  .  may  have  the  buying  of  the 
tenements  by  his  claim,  which  he  shall  bring  before  the  next  Portmannemote  after 
the  sale  ";  he  must  pay  "  to  him  who  shall  have  bought  it  as  much  as  he  paid," 
and  the  usual  precautions  to  prevent  fraud  on  the  next  of  kin  are  to  be  taken.  One 
who  has  held  "  lands  or  tenements  of  his  inheritance,  or  by  purchase  "  for  a  year 
and  a  day  without  challenge  shall  remain  in  imdisturbed  possession. 

The  charter  of  1190  was  the  same  in  brief,  stated  that  the  customs  it  granted 
to  the  burgesses  "  se  habmsse  tempore  regis  Edwardi,"  and  allowed  sale  "  necessi- 
tate cogente  "  the  kin  to  have  first  offer. 

^  East,  Portsmouth,  pp.  4,  5  (customal) :  [he]  "  that  hathe  Lond  or  Howse  by 
purches  or  by  dissente  whereof  he  had  seysing  ...  a  yere,  and  a  daye  withoutyn 
any  Impechement  or  claym  .  .  .  to  reioyse  it  for  ev'more;  but  if"  (i.  e.,  except) 
"  it  so  be  that  ther  be  any  Wythyn  age  other  "  (i.  e.,  either)  "  oute  of  the  Lond 
or  yn  preson,  that  is  to  Wetyng  "  {i.  e.,  to  wit)  "  Brother,  or  suster,  or  Unkle, 
or  Nevewe,  or  Nees."  Temp.  14  cent.  Both  purchase  and  inheritance  seem  • 
subject  to  retrait. 


Il8  BURGAGE   TENURE  IN  ENGLAND 

of  the  kin's  right  to  preemption.^  At  Romney,  if  an  heir's 
tenements  had  been  sold  when  he  was  in  ward  he  might  recover 
them  when  he  came  of  age  by  paying  the  selling  price.'^  This 
is  merely  an  extension  of  the  rule  governing  the  kin's  preemption 
that  an  heir  may  recover  an  inheritance  on  coming  of  age; 
his  difficulty  would  be  in  finding  the  money  to  pay  for  his  lost 
inheritance.  It  is  plain  that  it  would  often  be  for  the  best 
interests  of  an  heir  in  wardship,  and  sometimes  necessary  for 
his  maintenance,  to  sell  his  realty.  The  custom  at  Dover  and 
probably  all  other  boroughs  of  restriction  was  first  to  sell  the 
ward's  chattels,  his  ships  included.  His  tenements  might  then 
be  sold,  but  the  buyer  was  never  (in  theory)  assured  of  undis- 
turbed possession  till  the  heir  had  passed  the  age  of  majority 
(i2  to  2i)  by  a  year  and  a  day.' 

Turning  again  to  the  land  of  the  shires,  we  find  the  kin's 
retrait  at  Nottingham,*  where  the  following  transcript  of  a  record 
of  the  municipal  court  shows  how  the  principle  worked  in  prac- 
tice: "  A.  comes  and  claims  a  messuage  ...  in  Nottingham, 
which  H.  bought  of  P.,  a  kinsman  of  the  aforesaid  A.,  and  offered 
the  money  given  for  the  said  messuage.      And  .  .  .  H.  comes 

'  Lyon,  Dover,  ii,  p.  274.  The  customal  provided  that  when  one  wished  to  sell 
his  "  heritage  .  .  .  the  most  next  of  his  heirs  shall  have  it  before  another."  If  the 
"  most  next  "  or  any  of  the  kin  should  not  know  of  the  sale  at  the  time,  he  may 
come  to  court  as  soon  as  he  does  know,  "  and  claim  the  bargain,  [and]  shall  have  it, 
by  the  award  of  the  mayor  and  jurats,  in  less  price  by  every  pound  i2d.,  and  the 
seller  shall  make  up  the  deficiency  to  the  first  purchaser." 
,     2  Ibid.,  ii,  pp.  331-332- 

'  The  buyer,  however,  usually  held  a  bond  of  indemnification,  in  case  of  reclama- 
tion, from  the  guardian,  who,  unless  appointed  by  will,  commonly  was  also  under 
bonds  to  the  civic  authorities  for  due  performance  of  duty. 

Under  any  circumstances  and  in  any  borough  an  action  for  '  waste  '  might  be 
brought,  and  such  actions  frequently  were  brought,  against  a  guardian  on  the 
minor  heir's  attaining  his  legal  age. 

In  the  cities  of  the  upper  Rhine  valley  a  minor  heir's  relations  sometimes  con- 
sented to  sale  in  his  place  (Arnold,  Geschichte  des  Eigentums,  pp.  132-133).  This 
secured  the  buyer  from  disturbance  by  the  heir  on  reaching  his  majority,  but  the 
heir  had  his  legal  remedy  against  the  relatives. 

*  Rymcr,  Focdcra,  i,  p.  41;  Stevenson.  Records  of  Nottingham,  i,  p.  2:  "  quicum- 
que  burgcnsium  terram  vicini  sui  emerit  et  possiderit  per  annum  integrum  et  diem 
unum  absque  calumpnia  parentum  vendentis  si  in  Anglia  fuerint,  postea  earn  quicte 
possidebit."  PLu .  Wcstmon.  Abbr.,  p.  230,  21  Ed.  I:  "  Jura  tores  dicunt  .  .  . 
quod  .  .  .  propinquiures  "  who  wished  their  deceased  relatives'  land  must  ofler 
the  price  within  a  year  and  a  day  in  the  gildhall. 


MOBILITY  119 

and  demands  the  money  which  he  gave  for  the  .  .  .  messuage, 
together  with  the  costs  expended  upon  the  said  messuage, 
according  to  the  custom  of  .  .  .  Nottingham.  And  it  is  decided 
that  .  .  .  H.  shall  make  oath  how  much  money  he  gave,"  and 
so  on  to  the  recovery  of  the  messuage.^  The  same  custom  existed 
at  Derby,^  which  had  customs  similar  to  those  of  Nottingham 
in  most  matters.^  As  would  be  expected  Manchester,  Stockport, 
and  Salford,  contiguous  in  situation  and  almost  contemporary 
in  creation,*  were  boroughs  of  restricted  sale,  the  restriction 
apparently  not  being  confined  to  lands  of  inheritance  but  extend- 
ing to  lands  of  purchase  as  well.^  At  Manchester  the  distinction 
was  drawn  between  inheritance  and  purchase  for  sale  in  necessity, 
but,  as  at  Northampton,  it  seems  to  have  been  a  distinction 
without  a  difference ;  ^  while  at  each  of  the  three  a  burgess  might 
sell  with  his  heir's  consent/ 

^  Stevenson,  Records  of  Nottingham,  p.  71,  a.  1310-11.  See  ibid.,  p.  loi,  a.1327, 
for  a  similar  case. 

2  Simpson,  Derby,  i,  p.  29.  In  the  charter  of  1204  the  usual  year  and  day  limit 
of  quiet  possession  is  mentioned. 

^  Kingsthorpe,  though  it  was  not  legally  a  borough,  had  the  same  custom. 
The  place,  as  part  of  the  ancient  demesne,  seems  to  have  been  allowed  to  adopt 
many  of  the  customs  of  burgage  tenure.  "  The  .  .  .  seller  of  .  .  .  lands  " 
(I  modernize  the  spelling)  "  shall  jdeld  them  up  into  the  king's  hand  unto  the  behoof 
of  the  buyer  .  .  .  there  to  abide  nine  days;  and  if  any  person  kin  to  the  said  seller 
within  the  fourth  degree  come  within  the  said  nine  days  and  ask  a  cate,"  the  tene- 
ments shall  be  delivered  to  him;  he  must  pay  the  same  amount  as  a  stranger  would 
pay  and  on  the  same  day  (Glover,  Kingsthor plana,  p.  41). 

*  The  dates  of  their  charters  are:  Salford,  1230;  Stockport,?  1260;  Manchester, 
1301.     The  Manchester  charter  is  the  most  detailed. 

^  Tait,  Mediaeval  Manchester,  p.  66:  "  Quilibet  burgensis  burgagium  suum 
potest  .  .  .  vendere  cuicunque  voluerit  nisi  heres  illud  emere  voluerit;  sed  heres 
propinquior  erit  ad  illud  emendum." 

^  Ibid.,  p.  66:  "  Liceat  cuilibet  terram  suam  que  non  est  de  hereditate  ven- 
dere .  .  .,  si  necessitas  incident,  cuicunque  voluerit,  nisi  heres  eam  emere  voluerit; 
sed  heres  debet  esse  propinquior,"  etc. 

^  At  Manchester  "  si  forsitan  heres  noluerit,  tamen,  si  necessitas  incident, 
licebit  ei  vendere  de  hereditate  sua  de  quacunque  etate  heres  fuerit  "  {ibid.,  p.  66). 
The  heir  must  buy  or  consent  to  sale  if  made  in  necessity. 

The  charters  (customals)  state  in  brief  that  (i)  a  burgage  may  be  sold,  (2)  pur- 
chase may  be  sold  in  need,  (3)  inheritance  may  be  sold  in  need  (at  Manchester), 
at  Stockport  and  Salford  only  with  the  heir's  consent.     This  looks  like  stupid  and 
undiscriminating  copying  of  the  Northampton  customal,  though  the  three  boroughs  - 
in  question  are  supposedly  '  BretoUian.' 


I20  BURGAGE  TENURE  IN  ENGLAND 

From  the  Lancashire  boroughs  we  pass  to  Newcastle,  where 
the  restriction  on  sale  declared  in  the  customs  during  the  reign 
of  the  Conqueror's  youngest  son  ^  was  still  present  in  that  of 
the  greatest  of  the  Plantagenets.^  The  year  and  day  limit  of 
challenge  in  Henry  II 's  charter  to  Lincoln  shows  it  to  have  been 
a  borough  of  restriction.^  The  phraseology  of  one  of  the  customs 
of  York  indicates  almost  to  a  certainty  that  it  too  knew  the 
kin's  retrait.*  Beverley  probably  followed  York  at  this  early 
period.*  Dunwich  was  a  borough  of  restricted  sale;*  Ipswich 
very  probably  was  of  like  nature.  Though  its  customal '  is 
clear  on  most  points  and  is  full  even  to  repletion  on  a  few  points, 
it  is  strangely  silent  in  respect  to  sale  and  its  restriction.      In 

1  Brand,  Newcastle,  ii,  p.  130,  note  d:  "  Quilibet  burgensis  terram  suam  vendat, 
et  ire  quo  voluerit,  nisi  terra  ilia  fuerit  in  calumpnia."  Also  "  si  quis  terram  in 
burgagio  uno  anno  et  una  die  justo  et  sine  calumnia  tenuerit,  non  respondeat 
calumnianti,  nisi  calumnians  extra  regnum  Angliae  fuerit,  vel  ubi  sit  puer  non 
habens  potestatem  loquendi  "  (Stubbs,  Select  Charters,  p.  112,  Customs  of  New- 
castle. The  previously  quoted  clause  is  given  with  slightly  different  wording  but 
with  the  same  meaning  in  this  source  also). 

At  Wearmouth  there  was  the  same  custom  (Bateson,  Borough  Customs,  ii,  p.  91), 
expressed  in  almost  exactly  the  same  words.  Miss  Bateson  considered  this  clause 
to  mean  the  prohibition  of  the  sale  of  a  tenement  concerning  which  a  suit  had  been 
begun.  Such  a  clause  in  a  borough  customal  would  be  about  as  necessary  as  one 
compelling  water  to  run  downhill  in  the  borough  gutters.  Who  would  buy  a  tene- 
ment whose  ownership  had  yet  to  be  decided  by  the  courts  ? 

Transfers  of  property  to  be  legal  had  to  be  effected  in  the  municipal  court  in  the 
boroughs  of  restriction.  There  the  kin  might  put  in  a  challenge  {calumnia). 
A  suit  followed  only  in  case  of  dispute. 

^  C.  I.  M.,  ii,  p.  94,  3  Ed.  I. 

'  H.  M.  C,  Rep.,  14,  app.,  pt.  8,  p.  2,  a.  1157.  In  the  Confessor's  day  no  one 
might  sell  his  tenement  outside  the  city  and  away  from  the  kin  without  the  kin's 
consent  {D.  B.,  i,  f.  336a). 

*  Widdrington, /I «a/c<"/o  £6orace«i/a,  p.  67  (customal):  "  There  is  a  custom  .  .  . 
that  the  husband  may  give  his  lands,  which  are  of  his  own  purchase,  to  his  wife  .  .  . 
as  well  as  to  any  other  person."  After  such  a  lapse  of  time  and  at  this  stage  we 
have  no  particular  interest  in  the  burgess's  wife;  we  have  in  any  other  person, 
for  the  implication  is  that  the  burgess  may  not  give  or  sell  inheritance.  York  and 
Lincoln  had  the  same  customs  in  most  respects;  the  "  same  customs  as  York  and 
Lincoln  "  is  a  phrase  of  a  grant  at  the  borough  of  Hedon,  temp.  John.  The  great 
age  of  these  customals,  even  in  compilation,  is  to  be  noted. 

*  See  Poulson,  Beverlac,  p.  51;  Rymer,  Foedcra,  i,  p.  10;  Stubbs,  Select  Charters, 
pp.  109-1 10  (c.  1121). 

'  Hardy,  Roluli  Chartarum,  pp.  51,   211,  a.  1200,   1215;    the  burgesses  were 
allowed  to  give  or  sell  their  "  purchases  of  lands  or  tenements." 
^  Le  Domesday  de  Gippewyz. 


MOBILITY  121 

Ipswich  in  1377,  however,  a  case  arose  which  in  brief  was  this. 
One  John  Norton  had  bought  a  tenement  from  John  Ellis, 
after  which  he  found  that  Ellis  had  an  older  brother,  "  who 
hathe  issue  alive  of  full  age."  Norton  then  asked  the  bailiflfs 
to  inquire  into  the  circumstances  of  the  sale,  and  to  give  him 
a  record  thereof.  They  reported  to  Norton  that  Ellis's  father 
had  bought  the  tenement,  that  his  (the  father's)  wife  "  over- 
lived "  him  and  gave  the  tenement  to  John  Ellis  (the  son)  "  in 
the  presence  of  diverse  witnesses,"  and  also  gave  him  "  the  deed 
of  purchase."  ^  It  is  clear  from  this  record  that  when  Norton 
found  that  the  man  who  sold  him  the  messuage  had  an  older 
brother,  with  children,  he  feared  that  preemption  might  be 
exercised.  Otherwise  he  would  not  have  appealed  to  the 
baihffs  nor  would  they  have  bestirred  themselves  if  sale  in 
Ipswich  had  lain  under  no  restriction.^  It  would  seem  from 
the  evidence  of  both  consent  to  sale  and  sale  in  need  that 
Bath   was   likewise   a  borough  of  restriction.^      At    Morpeth,* 

^  Bacon,  Annalls  of  Ipswiche,  p.  79.  The  tenement  was  '  purchase  '  to  the 
father.  Had  he  died  intestate  it  would  have  been  '  inheritance  '  to  the  sons. 
Apparently  the  father  had  devised  it  to  his  wife. 

2  See  also  ibid.,  p.  23,  for  the  distinction  between  inheritance  and  purchase. 

At  Gloucester  in  1 199-1200  occurred  the  previously  noted  case  which  suggested 
restriction  (see  p.  54,  note  i).  A  burgess  granted  a  messuage  "  with  the  assent  of 
his  wife  and  the  consent  of  his  son  "  (Stevenson,  Records  of  Gloucester,  p.  73). 
The  wife's  assent  would  be  necessary,  especially  if  the  tenement  were  originally 
hers  or  had  been  acquired  after  marriage.  The  lord's  consent  also  is  contained 
in  the  grant,  but  neither  is  relevant  to  the  point  at  issue.  This  combination  of 
assent,  with  its  absence  from  all  other  Gloucester  grants  {ibid.,  pp.  73-158,  a. 
1200-30;  see  the  evidence  under  Free  Sale,  p.  112),  consents  too  much  to  mean 
anything. 

'  King  and  Watts,  Records  of  Bath,  pp.  9-10,  a.  1218.  A  grant  of  a  tenement, 
whose  former  holder  had  died  leaving  a  wife  and  one  son,  required  apparently 
two  deeds  to  give  a  clear  title.  By  the  first  deed  the  mother  conveyed  the  tene- 
ment with  the  son's  consent;  by  the  second  the  son  abandoned  all  claim,  swearing 
never  to  try  to  '  aloign  '  the  buyer  or  his  heirs.  It  seems  that  the  tenement 
might  not  be  sold  without  the  son's  (the  heir's)  consent,  and  that  his  mother  was 
acting  as  guardian. 

At  Bath  in  1249,  ^  deed  concluded  thus:  "  this  sale  now  I  .  .  .  have  made 
for  my  urgent  need,  because  I  was  charged  with  money  due  to  the  king  "  {ibid., 
p.  10). 

*  H.  M.  C.,  Rep.,  6,  p.  527,  a.  1286,  a  sale  "  in  necessity."  The  place  was  a- 
borougha«/e  1266. 


122  BURGAGE  TENURE  IN  ENGLAND 

Woodstock,'  and  probably  at  Alnwick,'^  all  boroughs  of  small 

'  Ballard,  Woodstock,  p.  14.  The  charter  of  1453  recognized  the  customs  used 
"  non  modico  tempore,"  one  of  which  was  that  the  transfer  of  property  must  be 
proclaimed  in  the  borough  court  on  three  consecutive  court  days,  and  if  no  one 
appeared  to  challenge  the  purchase  the  buyer  was  secure  thereafter  (after  the  usual 
year  and  day  probably).  *  Purchase  '  is  recognized  as  such  {ibid.,  p.  17).  Wood- 
stock and  Kingsthorf>e  were  once  both  in  the  ancient  demesne;  this  may  explain 
"  non  modico  tempore."  For  the  following  records  of  Woodstock,  hitherto  un- 
published, I  am  indebted  to  Mr.  A.  Ballard. 

"  Ad  curiam  Portmot'  tentam  apud  Novam  Wodstoke  in  com  Oxon  xxviii  die 
Novembris  anno  regis  Henrici  sexti  tricesimo  quinto  venit  Johannes  Baret  de 
eadem  Wever  et  clamat  tenere  sibi  et  heredibus  suis  unum  Gardinum  cum  Colum- 
bario  cum  omnibus  suis  pertinentiis  in  dicta  villa  de  Nova  Wodstoke  quod  nuper 
habuit  ex  dono  et  feoffamento  Johannis  Quenerton  filii  et  heredis  Roberti  Quenerton 
jam  defuncti.  Et  petit  quod  predictum  clamum  et  titulum  dicti  gardini  cum  Col- 
umbario  cum  omnibus  suis  pertinentiis  secundum  consuetudinem  dictae  villae 
ibidem  in  plena  curia  coram  Maiore  et  Burgensibus  villae  predictae  solempniter  et 
proclamari  et  recordari  Et  sic  ad  tunc  et  ibidem  dictum  clamum  et  titulum  pro- 
clamat'  et  recordat'  sunt  primo  vice  Et  insuper  videlicet  ad  curiam  portmot' 
tentam  ibidem  xii  die  Decembris  dicto  anno  similiter  proclamat'  et  recordat' 
sunt  et  dictum  clamum  et  titulum  modo  et  forma  ut  supra  in  plena  curia  secundo 
vice  Et  ulterius  modo  ad  curiam  Portmot'  tentam  xxvi  die  Decembris  dicto 
anno  venit  dictus  Johannes  per  Ricardum  Alderley  Attomatum  suum  Et  petit 
dictum  clamum  et  titulum  tertia  vice  proclamari  secundum  consuetudinem 
dictae  villae  et  sic  in  plena  curia  tertia  vice  proclamat'  sunt  predictum  clamum  et 
titulum  ut  supra  Et  quod  nullus  neque  aliquis  sedente  curia  venit  dictum  clamum 
et  titulum  sic  tertia  vice  proclamat'  secundum  consuetudinem  dictae  villae  con- 
tradicere  seu  calumpniare  Ideo  secundum  consuetudinem  predictae  villae  a  temjx)re 
cujus  contraria  memoria  hominum  non  existit  usitatam  predicta  clamum  et  titulum 
per  Johannem  Anstyn  tunc  majorem  predictae  villae  Johannem  Birde  Armigerum 
et  Ricardum  Dogett  Alderman  et  alios  Burgenses  ad  tunc  et  ibidem  jxir  presentes 
approbat'  testificat'  et  recordat'  et  irrotulat'  existit  pro  qua  quidem  probatione  et 
irrotulatione  predictus  Johannes  Baret  dat  domino  Regi  de  fine  .  .  .  iiii  d  Et  etiam 
per  predictum  Johannem  Maiorem  Johannem  et  Ricardum  .\ldermannum  secun- 
dum dictam  consuetudinem  Adjudicatum  est  quod  predictus  Johannes  Baret 
predictum  Clardinum  cum  Columbario  cum  omnibus  suis  pertinentiis  habcat 
gaudeat  possidcat  el  teneat  sibi  et  heredibus  suis  in  perpetuum.  In  cujus  rei 
testimonium  huic  presento  scripto  sigillum  commune  dictae  villae  est  apjx^nsum 
hiis  testihus  Johanne  Bocher  Willclmus  Taillor  et  Willelmus  Hcymcr  et  aliis  Datum 
apud  Wodestoke  pracdicto  die  et  anno  supradicto." 

Nrd>  Woodstock.     Form  of  Proclamation. 
.Ml  men  take  knowledge  for  the  right  title  and  interest  of  Thomas  Best  and  his 
heirs  of  and  in  One  tenement  with  a  close  the  which  he  purchased  of  Mr.  Edward 


*  Tate,  Alnwick,  i,  p.  93.  A  tenement  was  sold  as  of  purchase,  and  the  seller 
promised  on  his  heir's  part  not  to  eloign.  The  borough  had  the  customs  of  New- 
castle;  it  was  chartered  by  William  de  Vesci,  1157-85  (ibid.,  p.  96). 


MOBILITY  1 23 

importance  and  scanty  records,  restriction  was  probably  the 
rule. 

The  boroughs  of  Ireland  fall  into  two  groups.  In  those  which 
had  the  customs  of  Bristol  and  Dublin  (Waterford,  Limerick, 
Cork,  and  Rathcool  are  the  only  important  ones  in  our  period) 
sale  was  free.  In  many,  and  almost  certainly  in  all,  of  the  rest 
it  was  limited  to  lands  of  purchase.  Thus  at  Inistiogue  sale 
of  lands  of  purchase  was  permitted,^  so  too  at  Wexford, ^  while 
at  Drogheda  '  versus  Uriel '  the  charter  seems  to  have  allowed 
the  kin's  preemption  for  both  purchase  and  inheritance.^  No 
one  of  these  charters  goes  far  into  detail  in  respect  to  the  kin's 
preemption  with  its  rules.  One  charter  notes  the  year  and  day, 
another  the  distinction  between  purchase  and  inheritance; 
there  they  rest  their  cases.  The  case  for  restricted  sale  in  all 
the  boroughs  of  Ireland,  except  Dublin  and  its  followers,  seems 
well  made,  however;  an  additional  point  of  the  evidence  therefor 
is  that  these  towns  had,  or  thought  they  had,  the  laws  of  Breteuil, 
where  possibly  purchase,  but  not  inheritance,  might  be  sold 
without  the  kin's  consent. 

It  seems  that  nearly  every  part  of  England  had  one  or  more 
boroughs  where  the  kin's  retrait  existed,  from  Dover  and  Ports- 

Chamberlayn  Esquire  The  which  tenement  aboundeth  upon  the  Park  Wall  of  the 
west  part  and  of  the  North  part  the  High  Street  and  of  the  East  part  a  lane  going 
into  the  Common  Green  and  upon  the  South  part  aboundeth  upon  a  garden 
ground  late  the  Chantry's  now  in  the  holding  of  one  John  Fletcher  Now  if  there 
be  any  man  that  can  make  any  claim  or  title  let  him  come  &  claim  and  he  shall 
be  heard  according  to  the  form  of  law  or  else  it  is  adjudged  to  the  said  Thomas  Best 
and  his  heirs  for  ever  according  to  the  custom  of  this  borough  time  out  of  mind." 

1  Gale,  Corporate  System  of  Ireland,  app.,  p.  xii.  The  prior  conceded  to  the 
burgesses  the  privilege  "  omnes  conquestus  [acquisitions]  suos  dare  vendere  .  .  . 
sal  vis  serviciis  .  .  .  que  michi  debentur." 

2  Ibid.,  app.,  p.  xvi.  The  charter  was  from  the  Earl  of  Pembroke.  See  for 
these  charters,  Chartae  Hiberniae. 

^  Ibid.,  app.,  pp.  vii-viii:  "  if  any  person  shall  have  held  any  tenement  within 
the  bounds  of  the  .  .  .  borough,  either  by  gift  or  purchase,  or  from  inheritance, 
for  .  .  .  one  year  and  one  day  .  .  .,  and  there  shall  have  resided  any  one  in  .  .  . 
Ireland  claiming  ...  a  right  in  the  said  tenement,  who  shall  be  of  full  age  and 
free  of  body,  and  not  sickly,  and  he  shall  have  made  no  challenge  thereto  within  the 
term  aforesaid,  but  shall  have  maliciously  withdrawn  himself,  he  shall  lose  his 
challenge."  The  "  full  age,  and  free  of  body,  and  not  sickly  "  defers  the  Hm;t 
of  challenge  on  the  part  of  a  minor,  or  an  heir  in  jail,  or  one  who  is  sick.  Perhaps 
wilfully  withdrawn  '  is  better  than  '  maliciously  withdrawn.' 


124  BURGAGE  TENURE  IN  ENGLAND 

mouth  on  the  south  to  Newcastle  on  the  north,  from  Ipswich 
on  the  east  to  Tewkesbury  on  the  west.  The  midland  boroughs 
show  it  as  well  as  the  Lancashire  towns;  but  there  is  little  evi- 
dence for  either  freedom  or  restriction  from  the  western  towns 
on  the  Channel  coast.  In  time,  the  records  run  from  the  Con- 
fessor's day,  though  even  then  there  were  boroughs  where 
apparently  the  kin's  retrait  did  not  exist.* 

As  to  the  nature  of  the  sources  little  complaint  can  be  made  of 
customals  or  charters  and  records  of  courts.  Records  of  transfer 
of  realty  are  often  hard  to  analyze.  Such  expressions  in  deeds 
and  grants  as  inheritance,  or  purchase,  or  necessity,  may  have 
been  required  by  a  then  existing  custom,  they  may  be  survivals 
of  one  that  is  going  or  has  gone,  or  they  may  mean  nothing  at 
all.^  The  appearance  in  a  deed  of  some  expression  suggestive 
of  the  kin's  retrait  needs  corroboration  before  being  accepted 
as  proof  of  its  presence.  On  the  other  hand  the  absence  of  such 
phrases  from  records  of  transfer  in  any  borough  is  not  proof 
that  sale  therein  was  free;  the  grants  may  all  be  those  of  lands 
of  purchase,  which  were  saleable  nearly  everywhere. 

In  connection  with  this  subject  two  important  points  or 
questions  may  suggest  themselves.  Why  did  the  kin's  retrait 
appear  in  the  charters  (or  customals)  of  some  boroughs  and  not 
in  those  of  others  of  about  the  same  age  and  character,  and  what 
did  this  restriction  actually  mean  ?  Charters  to  the  boroughs 
by  prescription  have  no  place  in  this  discussion ;  tenurial  matters 
are  seldom  contained  in  them;  even  though  they  should  be, 
they  merely  state  some  custom  of  the  borough.  The  charters 
to  the  boroughs  by  charter,  whether  they  confer  the  burgage 
tenure  on  a  vill  or  on  a  previously  non-existent  town,  must 
either  contain  defmite  customs  (many  attempt  this  in  detail) 
or  grant  those  of  some  other  borough,  leaving  it  to  the  burgesses 
to  decide  how  much  or  how  little  of  such  they  shall  adopt.  In 
neither  case  does  there  appear  reason  to  think  that  the  lord  of 

'  D.  B.,  i,  f.  337a,  Torskcy.  T.  R.  E.  the  burgesses  of  Hereford  needed  the 
consent  (to  sale)  of  the  pracpositus  and  probably  of  the  kin,  but  restriction  had 
vanished  before  mid-.\ngevin  days. 

*  Just  as  grants  from  one  burgess  to  another  for  his  '  homage  and  service  '  are 
meaningless.     Burgesses  did  not  do  homage  or  even  swear  fealty  to  each  other. 


MOBILITY  125 

a  chartered  borough  ever  purposely  imposed  the  kin's  retrait 
on  his  burgesses ;  it  could  advantage  him  nothing.^  It  seems  that 
the  restriction  of  the  kin's  retrait  was  present  in  any  borough, 
chartered  or  prescribed,  because  the  burgesses  wanted  it  there; 
it  was  a  feature  of  the  old  Germanic  land  law,  and  even  in  the 
thirteenth  century  only  progressive  boroughs  had  got  rid  of  it.^ 

As  to  the  actual  meaning  or  effect  of  the  kin's  preemption, 
suppose  that  all  the  tenements  in  a  borough  are  of  inheritance.^ 
Families  may  become  extinct;  there  will  be  escheat.  Burgesses 
may  be  convicted  of  felony;  there  will  be  forfeiture.  When 
the  tenements  are  regranted  they  are  no  longer  of  inheritance, 
and  where  purchase  may  be  devised,  they  seldom  need  become 
inheritance  again.*  This  is  the  case  in  the  early  stage  of  borough 
development.  As  commerce  grows,  as  the  mercantile  spirit 
begins  to  infect  the  land,  the  kin's  retrait  is  felt  to  be  a  burden. 
The  plodding  farming  days  are  passing,  a  change  must  be  made 
in  the  custom.  It  is  made,  and  an  heir's  consent  allows  inheri- 
tance to  be  sold.  He  may  refuse,  and  '  selKng  in  need  '  begins. 
When,  is  not  of  so  much  moment;  soon  enough  to  appear  in  the 
earHest  customals.  It  must  have  made  the  kin's  preemption  a 
mere  phrase  ^  even  at  a  comparatively  early  period,  being  invoked 
as  a  legal  fiction  Uke  the  fiction  of  being  obliged  to  pay  a  debt 
to  the  king  in  order  to  get  the  Exchequer's  speedy  execution. 

The  next  step  in  many  boroughs  (those  of  free  sale)  seems  to 
have  been  either  to  ignore  the  kin's  retrait,  or,  which  is  more 
likely,  formally  to  change  the  customal.^     Apparently  the  kin's 

'  He  might,  however,  issue  a  prospectus,  as  it  were,  for  a  new  borough  with  the 
*  customs  of '  (say)  '  Bristol '  before  consulting  the  newcomers,  but  as  far  as 
these  customs  were  kept  out  of  the  charter  so  far  the  burgesses  covild  make  them 
what  they  pleased. 

2  At  Bury  Saint  Edmunds  in  1190,  Abbot  Sampson's  charter  contained  the 
kin's  preemption  because  it  had  existed  in  King  Edward's  day,  so  the  burgesses 
said,  which  was  true.  WTien  they  extorted  another  charter  in  1327  they  retained 
retrait  lignager. 

Of  boroughs  founded  in  Ireland  at  about  the  same  time  some  were  boroughs  of 
restricted  and  some  of  free  sale. 

^  A  possibility  in  a  newly-created  borough. 

*  They  commonly  did  so,  however. 

^  Court  records  show  no  need  to  prove  '  need,'  but  only  to  afl&rm  it  on  oath. 

*  Non-observance  and  non-enforcement,  opposition  and  change;    the  usual 


126  BURGAGE  TENURE  IN  ENGLAND 

preemption  existed  in  London  early  in  the  twelfth  century, 
but  its  disappearance  soon  after  was  too  rapid  to  allow  its  appear- 
ance in  Liber  Custumarum.  London,  however,  is  not  typical 
of  English  boroughs,  and  in  many  places  the  distinction  of 
purchase  and  inheritance  lasted  long.  The  frequent  promises 
of  sellers  not  to  try  to  eloign  the  buyer  or  his  heirs  may  have 
served  to  preserve  its  memory,  and  it  probably  lingered  in  back- 
ward boroughs  till  mediaeval  days  had  gone.^ 

steps  in  legal  progress.  Unless  their  customal  had  been  embodied  in  a  charter 
the  burgesses  could  change  it  themselves.     See  Stubbs,  Select  Charters,  pp.  i  lo-i  1 1. 

•  That  the  kin's  preemption  disappeared  from  the  land  law  of  the  country  in 
the  course  of  the  thirteenth  century  (Pollock  and  Maitland,  History  of  English  Law, 
i,  p.  647,  and  ii,  p.  313)  is  certain.  It  may  be  asked  then  why  it  appeared  in  Wood- 
stock, where  it  was  said  to  be  a  custom  used  "  non  modico  tempore  "  and  which 
town  did  not  become  a  borough  till  the  fifteenth  century,  and  in  Kingsthorpe  which 
was  never  a  borough  at  all.  Possibly  its  continuance  in  such  places,  in  which  it 
had  existed  for  no  short  time  as  the  townsmen  said,  was  due  to  the  fact  that  both 
were  in  the  ancient  demesne  and  may  have  been  allowed  to  retain  the  kin's  retrait. 
It  is  very  improbable,  however,  that  the  royal  courts  would  have  upheld  them  in  the 
practice.  Sir  F.  Pollock  has  suggested  (see  my  articles,  part  ii,  in  the  Law  Quar- 
terly Review  of  October,  1910,  p.  347)  that  this  survival  may  be  due  to  "  unthinking 
imitation  of  prevalent  borough  customs." 

In  a  few  baronial  or  episcopal  boroughs  the  lord's  intervention  had  at  one  time 
appeared  at  the  sale  of  a  burgage,  as  at  Pontefract  where  livery  of  seisin  was  through 
the  lord  (H.  M.  C,  Rep.,  8,  p.  269,  5  Rich.  I;  "  Quilibet  burgensis  poterit  terram 
suam  .  .  .  vendere  .  .  .  et  pretor  dabit  terram  emptori  de  dono  domini  "),  or 
rather  his  bailiff,  who,  however,  seems  to  have  been  a  wholly  involuntary  medium 
of  transfer. 

At  most  of  these  places  this  intervention  by  the  lord  of  the  borough  lay  in  the 
necessity  of  his  license  to  sell.  This  restriction,  however,  soon  passed  into  a  salu- 
tary check  on  alienations  in  mortmain,  or  else  the  town  and  not  the  lord  became  the 
licensor.  Thus  at  Walsall,  c.  1197  "  if  anyone  of  the  said  burgesses  shall  desire 
to  sell  his  burgage,  he  shall  make  it  known  to  us  or  to  our  bailiff  "  (Willmore, 
Walsall,  p.  160).  In  1308-09  the  town  had  taken  the  place  of  the  lord.  At  Salis- 
bury temp.  Henry  III  the  license  of  the  bishop  was  necessary  for  any  sale,  but 
in  1305  his  license  was  not  needed  except  where  mortmain  might  follow:  "  non 
liceret  civibus  .  .  .  burgagia  vel  tenementa  ...  in  eadem  Civitate  ecclesiis  vel 
viris  religiosis  dare  vel  vendere  .  .  .  sine  voluntate  et  licentia  .  .  .  Episcopi  " 
(Hoarc,  History  of  Modern  Wiltshire,  vi,  p.  740).  At  Chard  the  bishop  (Bath  and 
Wells)  retained  the  right  to  consent  to  this  sort  of  alienation  (C.  P.  R.,  a.  1286, 
p.  2l6). 

At  Bury  Saint  Edmunds  in  1190  the  charter  allowed  sale  "  necessitate  cogente 
.  .  .  sine  .  .  .  licentia  praepositi  "  (Dugdale,  Monasticon,  iii,  p.  154),  as  if  such 
license  had  been  necessary  at  a  previous  period. 


MOBILITY  127 

Inpenny  and  Outpenny 

Alienation  fees  as  paid  to  the  borough  lord  have  been  discussed 
among  the  incidents  of  the  tenure.  There  were  boroughs  where 
a  fee  at  ahenation,  called  at  Norwich  *  inpenny  and  outpenny  ' 
was  exacted  by  the  community.^  A  fee  of  this  sort  was  charged 
at  Preston,^  where  one  who  took  up  a  '  void  place  '  was  obliged 
to  build  thereon  within  forty  days  on  pain  of  forfeiture,  and  at 
Chesterfield.^  In  these  places  and  in  Norwich  only  new-comers 
need  pay  this  fee ;  it  was  not  charged  at  transfer  among  burgesses 
of  the  same  town.  The  burgesses  of  Hereford  denied  that  they 
exacted  entrance  fees  from  foreigners,  but  the  baiHffs  and  the 
town-clerk  were  paid  for  witnessing  seisin.'* 

At  a  number  of  boroughs  fees  were  charged  at  alienation, 
though  of  a  very  different  amount  and  wholly  different  nature 
from  those  mentioned  hereinbefore.  *It  is  probable  that  they 
were  collected  at  every  sale  of  realty,  for  the  boroughs  in  which 
they  occur  are  among  those  of  restricted  sale,  where  the  kin's 
preemption  enforced  publicity  of  ahenation.  In  some  cases, 
however,  their  customals  state  the  requirement  of  a  fee  only 
under  special  conditions.  At  Sandwich  when  a  tenement  which 
a  wife  had  brought  at  marriage  was  sold,  a  percentage  of  the  price 
was  paid  by  both  buyer  and  seller,  and  the  town-clerk  "  should 

^  Hudson  and  Tingey,  Records  of  Norwich,  i,  p.  229.  In  1286  Walter  son  of 
Nicholas  of  Norwich  granted  a  messuage  to  John  of  Yarmouth  and  "  predictus 
Walterus  dedit  Ballivis  Norwici  unum  denarium  de  jure  suo  exeundo  et  predictus 
Johannes  dedit  eisdem  ballivis  unum  denarium  ad  jus  suum  intrandum  secundum 
consuetudinem  .  .  .  Norwici."    See  ibid.,  p.  242,  a.  1289  for  the  same  custom. 

^  Hardwick,  Preston,  p.  259:  "  If  any  one  wish  to  be  made  a  burgess,  he  shall 
come  into  court  and  give  to  the  mayor  i2d.,  and  shall  take  his  burgage  from  the 
mayor." 

^  Yeatman,  Records  of  Chesterfield,  p.  40.  A  stranger  who  bought  a  messuage 
must  satisfy  "  the  Burgesses  set  out  in  their  ancient  manner."  Burgesses'  heirs 
who  had  paid  3d.  a  year  for  freedom  to  trade  paid  6d.  each  on  taking  up  tenements 
{ibid.,  p.  39).  A  burgess's  heir  was  not  allowed  to  hold  the  tenement  during  his 
father's  lifetime  {ibid.,  p.  39,  22  Ed.  I);  the  aim  may  have  been  to  restrict  the  term 
burgess  to  the  actual  freeholder. 

*  Johnson,  Customs  of  Hereford,  p.  26.  A  foreigner  need  pay  nothing  for  "  having 
ingress  into  the  same  "  (a  messuage),  "  but  only  i2d.  to  our  bailiff  ...  for  witness- 
ing the  seizin,  and  so  much  also  to  our  town-clerk." 


128  BURGAGE  TENURE  IN  ENGLAND 

also  be  considered";^  Romney  and  probably  the  rest  of  the 
Cinque  Ports  had  a  like  custom  for  a  similar  condition,  but  the 
seller  alone  paid  the  fee  "  to  the  comen  "  (community)  "  and 
the  clerk."  ^  At  Northampton,  in  addition  to  the  chief  lord's 
*  sellings,'  a  fractional  fee  was  charged  by  the  town; '  at  Maldon 
the  lord  sold  his  right  to  alienation  fees  to  the  burgesses.*  From 
an  economic  standpoint  these  fees  are  but  a  small  restriction 
on  the  mobihty  of  urban  realty;  even  in  the  early  part  of  our 
j>eriod  they  did  not  form  a  high  percentage  of  the  prices  com- 
monly paid.  A  fixed  fee  of  4d.,  that  of  many  of  the  smaller 
boroughs,  could  be  no  great  obstacle  to  him  who  wished  to  buy 
or  sell.  When  we  turn  to  the  larger  boroughs  and  those  of 
the  south  coast  we  seem  to  leave  the  middle  ages  behind  us. 
There  is  no  fixed  fee,  as  if  most  burgages  were  alike  in  size  and 
in  poverty,  but  a  percentage,  one-sixtieth  to  one  hundred  and 
twentieth  of  the  selling  price,  charged  for  registration  of  the  deed. 
We  have  here  two  sorts  of  alienation  fees  payable  to  communi- 
ties, the  fixed  and  the  fractional,  the  latter  being  a  charge  for 
registration  or  witnessing  seisin;    and  though  the  evidence  is 

^  Lyon,  Dover,  ii,  p.  307.  The  sale  must  go  on  record  "  agreeably  to  the  form 
of  levying  a  fine  in  the  king's  court,"  and  the  fee  was  "  4d.  in  the  pound  of  silver, 
viz.  2d.  from  the  buyer  and  2d.  from  the  seller." 

*  Ibid.,  ii,  p.  335.  The  amount  of  the  fee  is  not  stated.  A  grant  or  convey- 
ance (see  Boys,  Sandunch,  p.  524)  shows  how  exact  and  careful  the  mayor  and 
jurats  were  in  such  cases. 

It  is  said  that,  in  the  twelfth  century  one  who  bought  land  in  London  must  pay 
2S.  to  the  ward  alderman  (Bateson,  Borough  Customs,  ii,  p.  81).  If  so,  this  fee  is 
hard  to  (lass,  for  it  is  neither  sellings  nor  a  registration  fee,  the  latter  being  paid  at 
the  Hustings. 

At  Beverley,  where  the  Gild  Merchant  seems  to  have  governed  the  borough, 
it  was  ordered  in  1367  that  he  who  became  free  of  toll  by  purchasing  100  ft.  of  land 
should  come  to  the  town  hall,  show  his  deed,  pay  4d.  to  the  community  for  entrance, 
and  2d.  to  the  clerk  {Beverley  Toum  Documents,  p.  79).  There  is  no  evidence  for  an 
entrance  fee  before  1367. 

'  Markham,  Liber  Custumarum,  p.  36.  He  who  bought  "  londe  tenement  or 
rentis  "  must  pay  2d.  in  the  pound  "  to  the  profyte  of  the  toun." 

*  C.  P.  R.,  a.  1403,  pp.  307-308.  The  fee,  called  '  landchcpe,'  was  lod.  in 
the  mark,  paid  by  the  buyer.     The  bishop  of  London  was  lord. 

At  Kingsthorpe  "  yf  any  man  [e.x]chaunge  any  .  .  .  tenement,  and  any  bote  be 
hadde  unto  the  sume  of  ii  d.  and  above,  so  after  the  quantyte  as  yt  ys  above 
to  paye  sceson  "  (Cilover,  Kingsthorpiana,  p.  42).  .^n  alienation  fee  was  paid 
on  the  difference  in  price  at  exchange,  and  probably  also  at  simple  sale. 


MOBILITY  129 

scanty,  it  seems  strange  if  many  boroughs  enrolled  deeds  without 
requiring  a  fee  of  some  sort.^  Between  the  fee  as  exacted  by  a 
lord  and  that  as  charged  by  a  community  there  is  a  wide  dif- 
ference in  origin.  Though  in  some  boroughs  the  right  to  make 
profit  of  transfer  of  tenements  may  have  passed  from  the  lord 
to  the  burgesses,  there  is  no  evidence  that  such  was  the  case  at 
any  but  a  few  places  of  small  importance,^  most  of  which  seem 
to  show  Norman  custom  in  their  fixed  ahenation  fees.  Both 
fixed  and  fractional  fees  existed  in  Normandy;  ^  the  fixed  fee 
may  have  been  an  importation  into  England  from  across  the 
Channel.  If  the  fractional  fee  came  from  the  same  source, 
it  must  have  lost  weight  tremendously  in  the  passage,  for  in 
the  villes  of  Normandy  the  lods  et  ventes  were  one- twelfth, 
five  to  ten  times  greater  than  registration  fees  in  Northampton 
and  the  Cinque  Ports.  Instead,  then,  of  looking  for  shadowy 
derivations,  it  seems  better  to  take  the  facts  as  they  are.  In  a 
few  boroughs,  mostly  of  the  backward  sort,  a  fixed  fee  was 
charged  at  the  ahenation  of  a  tenement;  in  some,  and  probably 
in  the  majority,  of  the  larger  boroughs  a  fractional  fee  was 
levied  for  recording  a  deed ;  for  most  of  the  boroughs  the  evidence 
is  too  scanty  for  proof .^ 

1  Enrolment  was  almost  universal:  any  compilation  of  burghal  records  (see 
appended  bibliography)  provides  abundant  evidence. 

"^  At  Maldon  the  lord  (bishop  of  London)  sold  to  the  burgesses  his  right  to  take 
such  a  fee.    Both  town  and  chief  lord  (usually  a  burgess)  got  fees  at  Northampton. 

^  One  need  not  stop  with  Normandy.  The  rule  for  northern  European  towns 
was  that,  when  alienation  fees  existed  at  all,  they  were  fractional  in  natural  and 
fixed  in  artificial  towns. 

*  There  are  a  few  legal  records  of  land  transfer  in  extra-burghal  courts.  In  53 
Henry  III  a  "  final  concord  was  made  at  Westminster  "  in  respect  to  a  messuage 
in  Cambridge  (C.  /.  M.,  i,  p.  227).  The  Norfolk  Feet  of  Fines  contain  several 
records  of  transfer  of  messuages  in  Norwich  and  its  suburbs,  24,  36,  40,  and  42 
Henry  III  (Stanley  v.  Mayor  of  Norwich,  etc.,  flf.  6,  7).  As  late  as  the  second 
half  of  the  sixteenth  century  there  are  conveyances  by  indenture  in  London  (H.  M.  C. , 
Rep.,  9,  pt.  I,  p.  5),  but  these  were  probably  in  the  Hustings,  it  and  other  borough 
courts  often  using  that  method. 

Every  borough  of  consequence  had  the  sole  right  to  hear  and  determine  pleas 
of  land  within  its  bounds,  and  burgesses  who  tried  to  carry  their  cases  outside  were 
often  haled  back  by  the  civic  authorities.  The  final  concord  at  Westminster  may 
have  been  settlement  of  an  appeal  from  the  borough  court  at  Cambridge.  The 
Norwich  cases  apparently  had  never  been  before  the  court  of  that  borough,  other- 


I30  BURGAGE  TENURE  IN  ENGLAND 

Free  Devise 

In  one  sense  this  peculiarity  of  burgage  tenure  was  its  most 
important  feature ;  the  right  to  *  make  a  devise  of  land  '  or  *  make 
an  heir  '  was  regarded  by  both  Glanvill  and  Bracton  as  the 
special  and  peculiar  feature  which  marked  off  the  tenure  of  the 
boroughs  from  the  tenures  of  the  country.'  Bracton  seems  to 
have  thought  that  freedom  of  devise  existed  in  every  borough 
in  England.  As  we  proceed,  however,  we  shall  find  that  there 
were  many  boroughs  where  only  certain  sorts  of  tenements 
might  be  willed,  and  some  where  devise  of  realty  was  unknown. 
Probably  when  Bracton  was  compiling  his  De  Legibus  Angliae 
he  had  London  and  a  few  other  large  boroughs  in  view,  in  which 
there  was  certainly  complete  freedom  of  devise  in  his  day, 
and  no  doubt  long  before.  Whether  as  commentator  or  as 
justice,  he  would  seldom  have  the  matter  of  wills  of  lands  and 
tenements  presented  to  his  attention.  This  may  serve  to  explain 
why  his  statements  in  respect  to  burghal  devise  are  contradic- 
tory ;  ^  for  wills  of  land  were  enrolled  as  a  rule  in  the  borough 
courts,  and  disputes  concerning  their  validity  were  settled 
there. 

wise  they  would  have  been  taken,  like  other  records  in  this  case  (Stanley  v.  Mayor, 
etc.)  from  the  rolls  of  the  borough  court.  As  long  as  no  one  questioned  its  origin 
the  foot  of  the  fine  in  each  case  would  be  a  valid  deed  of  transfer.  Should  a  dispute 
arise  the  feet  might  be  set  aside  as  not  being  records  of  a  court  of  proper  instance 
or  of  one  not  having  jurisdiction. 

'  Devise  of  chattels  was  the  same  within  or  without  the  borough  bounds  during 
the  mediaeval  period  and  remained  under  restrictions  in  the  boroughs  till  the  close 
of  the  seventeenth  century  (4  and  5  William  and  Mary),  long  after  these  restric- 
tions had  been  abolished  in  the  country  at  large.  Cf.  compurgation  in  the  boroughs 
with  corresponding  jury  trial  in  the  country.  See  Gross,  "  Modes  of  Trial  in  Med- 
iaeval Boroughs  "  {Harvard  Law  Review,  xv,  pp.  691-706).  The  boroughs  may  have 
led,  but  they  also  lagged. 

^  Briltun  states  that  inheritance  might  not  be  sold  in  London  (Nichols,  Britton, 
i,  p.  174,  note)  yet  that  does  not  make  it  so.  Both  Britton  and  Bracton  —  in  one 
sense  they  arc  the  same  —  state  that  inheritance  in  London  might  be  neither  sold 
nor  beciucathed.  Says  the  latter,  after  stating  that  purchase  may  be  bequeathed: 
"  Secus  tamen  est  in  quibusdam  locis  si  pcrveniant  ex  desccnsu  antecessoris,  in 
quibusdam  locis  sicut  in  civitate  Londoniae  "  (De  Legibus,  edited  by  Sir  Travers 
Twiss,  vi,  p.  214).  Previously,  if  Twiss  edited  in  the  order  in  which  Bracton  wrote, 
he  had  said,  "  revera  terminatum  est  quod  potest  legari  ut  catallum  tam  haereditas 
quam  perquisitum  per  barones  Londoii  et  burgenses  Oxoii  "  (ibid.,  iv,  p.  264). 


MOBILITY  131 

Wills  are  not  very  frequent  among  the  earliest  land  documents, 
even  in  London  and  other  large  towns.  The  primitive  burgess 
seems  usually  to  have  been  content  to  let  the  custom  of  the 
borough  ^  take  its  course  in  regard  to  intestacy;  and  even  where 
wills  were  common,  the  oldest  have  often  been  destroyed  or  lost.^ 
With  the  twelfth  century  the  practice  of  devise  increased,  and 
soon  no  important  borough  was  without  a  greater  or  lesser 
number  of  wills  of  realty.^  The  sources  for  this  part  of  our 
subject  are  of  the  same  sort,  except  where  wills  take  the  place 
of  grants  and  conveyances,  as  those  used  in  the  matter  of  free 
and  restricted  sale,  and  present  almost  the  same  ease  or  difficulty 
of  interpretation.^  The  distinction  of  lands  of  purchase  and  lands 
of  inheritance,  with  freedom  for  the  former  and  restriction  for 
the  latter,  ran  a  course  in  devise  nearly  parallel  to  that  in  sale, 
with  this  important  difference,  however,  that  free  devise  was 
almost  everywhere  a  later  development  of  the  borough  land  law 
than  free  sale.  If,  therefore,  sale  of  lands  of  inheritance  in  any 
particular  borough  lay  under  the  limitation  of  the  kin's  retrait, 
it  must,  in  the  absence  of  records,  be  assumed  that  lands  of  pur- 
chase alone  could  be  devised  at  that  date.  Later,  a  change 
in  the  customal,  perhaps  never  formally  recorded,  might  abolish 
restriction  in  part  or  in  whole. 

Whatever  the  case  may  have  been  at  an  early  period,  the  York 
customal  makes  no  exception  or  limitation  in  stating  that  devise 
was  free,°  nor  was  '  inheritance  '  made  the  ground  of  action 

Elsewhere  (Maitland,  Bradon's  Note  Book,  u,  p.  65)  he  had  noted  a  case  which 
turned  on  the  acknowledged  freedom  of  devise  in  London  in  12 19. 

Possibly  the  method  of  proclaiming  (enrolling)  a  devise  of  land  in  the  Hustings 
may  be  a  relic  of  the  vanished  restriction.  There  is  a  Calendar  of  Wills  Proved  and 
Enrolled  in  the  Court  of  Husting,  London,  1258-1688,  edited  by  R.  R.  Sharpe. 
The  Hustings  still  enrolls  deeds. 

^  Sometimes  primogeniture,  sometimes  Borough-English,  sometimes  equal 
division  of  tenements. 

2  See  Matthews,  Cardiff  Records,  iii,  p.  99.  All  the  old  deeds  in  Cardiff  were 
destroyed  by  fire. 

^  All  sorts  of  oddities  in  the  way  of  devise  can  be  seen  in  an  old  work  by  Henry 
Swinburne,  A  Treatise  of  Testaments  and  Last  Wills  (4th  ed.,  1677). 

*  See  p.  III. 

^  Widdrington,  Analecta  Ebor.,  p.  70:  "  all  the  lands,  tenements,  and  services 
within  the  city  and  suburbs  ...  are  devisable  by  the  usage  of  the  .  .  .  city; 


132  BURGAGE  TENURE  IN  ENGLAND 

in  an  attempt  to  have  a  will  set  aside  by  the  court.'  Possibly 
devise  was  free  at  Congleton;'^  it  certainly  was  at  Wycombe, 
if  the  jurors  made  true  deliverance  before  the  royal  justices.^ 
The  Hereford  customal  distinctly  implies  that  devise  in  that  city 
was  free.* 

At  Bakewell  tenements  might  be  bequeathed,  though  appar- 
ently only  to  fellow  burgesses.^  At  Hull,  the  only  borough 
(Overton  excepted)   of  royal  foundation,'  at  Chard,^  and  at 

and  the  citizens  may  devise  them."  He  who  held  a  tenement  jointly  with  another 
might  devise  his  part  without  making  Severance. 

In  1286-90  the  townsmen  of  Bootham,  one  of  the  suburbs  of  York,  said  that  their 
tenements  "  be  devisable  by  will  "  {ibid.,  p.  121),  making  no  distinction  as  topiu:- 
chase  or  inheritance.  The  men  of  York  said  they  devised  their  tenements  "  tan- 
quam  catalla  sua  "  {ibid.,  p.  58).  No  doiibt  sale  too  was  free  at  this  period  though 
restricted  at  an  earlier  date.     See  text,  p.  120. 

*  Widdrington,  Analeda  Ebor.,  p.  69,  20  Ed.  III.  A  son  unsuccessfully  claimed 
his  father's  freehold  because  it  had  been  devised  away  from  him  by  nuncupative 
will.     Still,  the  messuage  may  have  been  '  purchase.' 

Notwithstanding  the  statement  that  "  all  tenements  "  might  be  devised  I 
doubt  strongly  that  this  was  the  case.  If  Widdrington  had  quoted  the  Latin  of 
the  customal,  or  even  given  an  approximate  date,  one  might  be  surer.  York  was 
not  a  progressive  city  and  free  devise  does  not  precede  free  sale.  If  such  freedom 
existed,  it  must  have  been  late  in  the  middle  ages;  the  evidence  rings  hollow,  it  is 
counter  to  the  genius  of  the  place. 

*  Head,  Congleton,  p.  34,  a.  1272.  Henry  de  Lacy's  charter  allowed  his  burgesses 
to  "  alienate  [messuages]  at  their  Will,  except  to  religious  Persons."  This  is  not 
conclusive  evidence;  alienation  may  have  been  only  among  the  living. 

'  Plac.  Westmon.  Abbr.,  p.  188,  2  Ed.  I:  "  juratores  requisiti  si  consuetudo  sit 
. . .  dicunt  quod  aliquis  . . .  (habens  aetatem]  potest . .  .  terram  suam  . .  .  legare." 

*  Johnson,  Customs  of  Hereford,  pp.  25,  34.  The  implication  concerns  the  case 
where  an  offender's  chattels  have  not  been  enough  to  pay  his  amend,  and  his 
tenement  has  been  taken  into  the  hand  of  the  king  and  commonalty,  its  revenue 
being  used  to  make  up  the  deficiency.  The  heir  may  enter  such  a  tenement,  but 
it  must  not  be  devised  till  the  amend  is  paid.  While  the  customal  does  not  state 
that  either  purchase  or  inheritance  was  devisable,  an  additional  reason  for  suppxjsing 
devise  to  be  free  is  that  sale  was  free.  Furthermore  there  was  in  strictness  no  heir 
to  a  purchase  until  its  holder  died. 

'  H.  M.  C,  Manuscripts  of  the  Duke  of  Rutland,  iv,  p.  41,  a.  1286.  W.  Gernun's 
charter  granted  "  that  they  may  .  .  .  bequeath  .  .  .  their  burgages  when  they 
will  and  to  whom  they  will  of  the  liberty  of  the  said  town."  The  last  phrase  was 
probably  only  an  indirect  method  of  preventing  devise  in  mortmain. 

*  Sheahan,  //;///,  p.  50.  The  burgesses  may  "  dispose  of  to  whomsoever  they 
please  "  their  tenements  "  in  their  last  wills  and  testaments." 

^  C.  P.  R.,  a.  1286,  p.  216.  Chard  had  been  a  borough  for  some  time.  The 
lord  of  the  borough,  the  bishop  of  Bath  and  Wells,  gave  the  privilege  of  free  devise 
by  charter  in  1280,  but  forbade  devise  in  mortmain. 


MOBILITY  133 

Scarborough  ^  liberty  of  devise  was  the  rule.  At  Altringham 
devise  seems  to  have  been  free;  ^  at  Bridgnorth  it  was  possibly 
the  same;  ^  at  Berwick  lands  and  tenements  might  be  bequeathed 
anywhere.^  Notwithstanding  its  so-called  historians,  it  is  only 
by  grace  of  a  quarrel  over  taxes  in  i  Edward  II  that  Canter- 
bury ^  appears  among  the  boroughs  of  free  devise.  At  Cam- 
bridge ®  the  right  to  devise  inheritance  appears  to  have  come 
as  a  royal  gift.  Free  devise,  however,  had  long  been  practised; 
the  king's  concession,  one  among  several  other  privileges,  seems 
to  have  been  only  a  hook  on  which  to  hang  a  prohibition  of 
bequest  in  mortmain.  At  Lynn  ^  inheritance  seems  to  have 
been  devisable. 

A  private  dispute  at  Dublin  serves  the  purpose  of  the  pubHc 
difference  at  Canterbury,  and  shows  devise  in  that  once  Danish 
city  to  have  been  free,  the  custom  being  declared  by  the  civic 
authorities.^     At  Bristol,  between  whose  customs  and  those  of 

^  Plac.  Westmon.  Abbr.,  32  Ed.  I,  p.  297  and  Brown,  Yorkshire  Inquisitions, 
iii,  pp.  91-93.  The  defendant  "  dicit  quod  est  consuetude  ibidem  quod  aliquis 
potest  legare  terras  suas." 

2  Parliamentary  Papers,  1835,  xxvi,  p.  2574:  "  quod  singulus  burgensis  bur- 
gagium  suum  possit  ...  in  testamento  assignare  cuicumque  vel  quibuscunque 
voluerit." 

3  C  /.  M.,  V,  p.  46,  2  Ed.  II:  a  messuage  was  bequeathed  to  a  daughter  to  the 
exclusion  of  a  son  who  was  the  devisor's  heir. 

*  C.  C.  R.,  iii,  p.  27,  a.  1302. 

^  Exchequer  Plea  Roll,  no.  30,  m.  9.  The  dispute  was  between  the  citizens 
proper  and  the  men  of  Stablegate,  who,  said  the  former,  always  paid  tallages  with 
them:  "  et  hoc  liquet  manifesto  quia  dicunt  quod  homines  de  Stablegate  semper 
temporibus  retroactis  hucusque  tenementa  sua  in  testamentis  suis  legarunt  et  legant 
ut  cetera  cateUa  sua  prout  ceteri  cives  ejusdem  civitatis  fecerunt  et  faciunt." 
See  also  H.  M.  C,  Rep.,  9,  pt.  i,  p.  171  for  freedom  of  devise  between  husband  and 
wife. 

^  Plac.  Westmon.  Abbr.,  p.  324,  9  Ed.  II:  "  et  in  isto  brevi  continetur  quod 
dominus  Rex  concessit  quod  omnes  tenementa  infra  burgum  Cantabrigiae  habentes 
...  in  ultima  voluntate  sua  in  testamento  suo  quibuscumque  legare  valeant," 
etc.,  except  in  mortmain.     Cooper  {Cambridge,  i,  p.  74)  assigns  this  '  gift '  to  13 13. 

^  H.  M.  C,  Rep.,  II,  app.,  pt.  3,  p.  188.  A  charter  which  granted  the  privilege 
of  enrolment  of  wills  in  the  gildhall  speaks  of  the  burgesses  as  "  having  been  hereto- 
fore accustomed  to  bequeath  by  will  their  tenements  in  the  said  burgh  according 
to  custom."     9  Ed.  III. 

*  Gilbert,  Records  of  Dublin,  i,  p.  489,  a.  1483.  The  prior  and  convent  of  the 
cathedral  on  the  one  hand  and  a  burgess  and  his  wife  on  the  other  claimed  a  mes- 
suage which  had  been  devised  to  the  wife  by  her  first  husband.     The  religiosi, 


134  BURGAGE  TENURE  IN  ENGLAND 

Dublin  there  was  so  strong  a  resemblance,  inheritance  might  be 
willed.'  Both  Bristol  and  Dublin  seem  to  have  reached  the 
rank  of  towns  of  free  devise  during  the  latter  part  or  soon  after 
the  close  of  the  thirteenth  century.  At  Bristol  certainly,  and 
at  Dublin  probably,  the  burghal  land  law  of  an  earlier  period, 
though  apparently  sometimes  evaded,  allowed  devise  of  purchase 
alone. '^  At  Hedon  in  the  East  Riding,  whose  customs  closely 
followed  those  of  York,  devise  was  free;^  at  Bath  like  liberty 
seems  to  exist  in  the  later  part  of  our  period.'' 

At  Nottingham  the  evidence  which  relates  to  devise  is  of  a 
sort  that  leaves  the  matter  somewhat  uncertain;  possibly 
inheritance  might  be  willed  toward  the  end  of  the  fifteenth 
century;  ^  though  the  fact  that  sale  was  restricted  as  late  as 

notwithstanding  that  devise  in  mortmain  was  forbidden,  persisted  in  their  claim 
and  drew  from  the  mayor  and  bailiffs  the  declaration  that  tenements  in  Dublin 
might  be  bequeathed  anywhere  except  in  mortmain. 

'  C.  I.  M.,  Henry  VII,  i,  p.  294,  7  Henry  VII.  "  All  messuages  .  .  .  therein  " 
(i.  e.,  in  Bristol)  "  can  be  devised  and  bequeathed  by  the  will  of  the  persons  seised 
thereof." 

*  See  Roberts,  Calendariutn  Genealogicum,  i,  p.  313.  In  9  Ed.  I  John  de  Lidiard 
willed  a  messuage,  which  had  come  to  him  as  his  brother's  heir,  to  his  wife  Joharma, 
"quae  tenementa  praedicta  Johanna  clamat  tenere  ratione  testamenti  .  .  . 
Johannis,  in  quo  continetur  quod  ipse  ei  ea  legavit  et  tamen  contra  consuetudinem 
.  .  .  Bristolliae."  There  is  nothing  to  show  that  Johanna  had  to  relinquish  the 
messuage.  In  1428  the  reversion  of  an  inherited  tenement  was  devised  at  Bristol 
(Bickley,  Calendar  of  Bristol  Deeds,  pp.  81-82).  In  1361  it  was  stated  (Bicklcy, 
Little  Red  Book  of  Bristol,  i,  p.  94)  in  connection  with  a  suit  over  disseisin,  that 
devase  was  free. 

'  Boyle,  Iledon,  p.  50,  a.  1348.  A  charter  allowed  the  burgesses  "  freely  " 
to  "  bequeath  all  their  lands,  rents  and  tenements  .  .  .  and  also  their  chattels." 
The  mention  of  chattels  seems  superfluous:  probably  the  original  phrase  was 
"  tanquam  catalla  ":  much  depends  on  the  "  all."  Hedon  was  a  borough  temp. 
Henry  11. 

*  King  and  Watts,  Records  of  Bath,  p.  25.  Cir.  1400  there  was  a  lease  of  a  tene- 
ment which  had  been  bequeathed  to  the  corporation  by  one  who  appears  to  have 
inherited  it. 

'  Plac.  Westmon.  Abbr.,  p.  180,  56  Henry  III.  Before  the  royal  justices  R. 
"  dicit  quod  consuetudo  burgi  Nottingham  talis  est  quod  si  homo  vcl  femina 
habucrit  terram  vel  tcnemcntum  potest  illud  vel  illam  .  .  .  Icgare."  Parties  to  a 
suit  are  not  always  impartial  witnesses  however. 

In  1335-36  .\gnes,  widow  of  Richard  de  Grimston,  sought  possession  against 
Thomas  de  StafTt)rd  and  his  wife  Letia  of  a  third  part  in  the  French  borough  and  a 
fourth  part  in  the  T^nglish  borough  (dower  in  each)  of  a  preposterous  amount  of 
realty.      The  defendants  had  possession,  in  the  English  borough  only,  of  about 


MOBILITY  135 

the  middle  of  the  fourteenth  century  ^  leaves  the  impression 
that  the  custom  at  Nottingham  may  have  been  halting  between 
two  opinions,  or  perhaps  entering  the  stage  of  transition.  What- 
ever it  may  have  become  at  the  beginning  of  the  modern  period, 
it  was  probably  a  town  of  restricted  devise  throughout  the 
middle  ages. 

There  is  throughout  our  period  more  variability  in  the  matter 
of  devise  than  in  that  of  sale.  Freedom  of  devise  was  a  later 
development  of  the  burghal  land  law,  often  so  late  that  it  escaped 
the  compilers  of  the  customals.  It  will  be  noticed  that  a  few 
of  the  boroughs  of  free  devise  appear  in  the  roll  of  towns  of 
restricted  sale.  In  such  boroughs  the  evidence  concerning  sale 
comes  mainly  from  the  twelfth  and  thirteenth  centuries,  the 
evidence  in  respect  to  free  devise  from  the  fourteenth  and  fif- 
teenth. The  sources  also  differ,  devise  oftener  than  sale  being 
a  subject  for  adjudication  by  the  courts. 

Restricted  Devise 

Where  lands  of  purchase  might  be  sold  freely,  the  rule  in  all 
the  boroughs  of  England  with  the  exception  of  Northampton 
and  a  few  lesser  towns,  they  might  be  freely  willed.  There 
was,  however,  a  group  of  boroughs  where  devise  of  either  sort 
of  tenement  seems  to  have  been  unknown.  This  is  practically 
a  certainty  in  respect  to  many  of  the  boroughs  of  Ireland, ^ 
with  a  few  in  England,  and  is  a  high  probabiUty  in  regard  to 
other  EngHsh  towns.  Whether  in  England  or  Ireland,  they  are 
all  included  in  one  class,  that  of  chartered  and  usually  created 
baronial  or  abbatial  boroughs,  showing  strong  traces  of  Norman 
influence  in  their  charters  or  customals.      Most  of  them  were 

two  per  cent  of  the  property  demanded,  concerning  which  they  rested  their  defence 
on  the  fact  that  the  messuages  were  theirs  bj^  will.  The  tenements  had  been  be- 
queathed to  Thomas;  this  would  have  been  unnecessary  had  he  been  Richard's  heir. 
If  they  had  been  of  purchase  Thomas  would  surely  have  said  so,  or  Agnes  that 
they  were  not,  if  inheritance  had  been  undevisable.  Thomas's  defence  was  that 
the  tenements  were  "  bequeathed  .  .  .  according  to  the  custom  of  .  .  .  Notting- 
ham "  (Stevenson,  Records  of  Nottingham,  i,  p.  125). 

^  See  p.  118. 

2  All  except  Dublin  and  its  daughter-towns,  Waterford,  Cork,  Limerick,  and 
Rathcool. 


136  BURGAGE  TENURE  IN  ENGLAND 

founded  in  the  twelfth  century ;  not  one  of  them  is  of  importance 
at  any  time  in  the  middle  ages. 

They  include  the  Bretollian  boroughs  —  Wexford,  Inistiogue, 
Drogheda,  and  other  small  Irish  towns, ^  with  Barnstaple  and 
other  boroughs  in  England.  On  account  of  a  certain  clause 
in  their  charters,  they  have  been  credited  with  the  custom  of 
free  devise,'^  when  in  fact  all  that  this  clause  provided  was  that 
no  burgess  should  so  use  his  tenement  as  in  any  way  to  injure 
his  neighbor.^  Furthermore  all  the  Irish  boroughs  of  our  period, 
with  many  small  Welsh  and  English  towns,  were  Bretollian, 
in  part  or  in  whole,  save  Dublin  and  its  followers  which  were 
Bristollian.  In  the  villes  of  Normandy,  Breteuil  among  them, 
devise  of  any  sort  of  tenement  was  then  unknown.*  It  is  pos- 
sible, however,  that  devise  crept  into  some  of  these  boroughs 
during  the  later  part  of  our  period,  devise  of  purchase  at  least, 
in  imitation  of  the  English  custom  in  Dublin  or  Bristol,  for  their 
charters  did  not  forbid  devise;  they  simply  did  not  know  it. 

Such  was  the  case  at  Barnstaple,  a  borough  almost  as  Bretol- 
lian as  the  boroughs  of  Ireland;  in  that  town  tenements  were 
bequeathed  early  in  the  fifteenth  century.^      At  Barnstaple, 

'  See  Gale,  Corporate  System  of  Ireland,  app.,  pp.  xi,  xiv,  etc.;  their  charters  are 
also  in  Chartae  Hiberniae. 

*  See  Bateson,  Borough  Customs,  ii,  p.  92.  The  clause  in  question  reads  "  liceat 
eisdem  burgensibus  de  tenementis  suis  que  tenent  in  burgagiis  suis  [sometimes 
burgagio  suo]  sine  injusto  gravimine  vicinoribus  suis  disponere  sicut  sibi  melius 
viderint  cxpedire,  sive  edificia,  sive  (h]ortos  ..."  (see  Gale,  Corporate  System  of 
Ireland,  app.,  p.  xii  el  pass.).  Miss  Bateson  considered  '  disponere '  to  mean  '  dis- 
pose of  by  will,"  supplying  the  last  two  words  gratuitously.  Both  lords  and  bur- 
gesses would  have  wondered  at  this  interpretation,  especially  as  the  sale  of  purchase 
alone  was  allowed.  In  addition  '  disponere  '  was  not  the  usual  term  for  devise  in 
borough  charters  or  customals,  and  when  used  at  all  was  always  followed  by  '  in 
testamento  (ultimo)  suo.'  There  are  very  few  instances  of  even  this  use:  '  legare  ' 
was  the  common  term;  sometimes  '  devisere.' 

*  At  Dublin  (Gilbert,  Records  of  Dublin,  i,  p.  5)  there  was  a  like  condition  in 
respect  to  the  use  of  messuages:  "  Every  citizen  may,  for  his  own  advantage,  build 
wherever  he  wishes  on  the  bank  [of  the  river),  but  without  damage  to  the  city  or 
citizens."  The  citizens  of  Dublin  were  forbidden  to  devise  their  lands  "  to  houses 
of  religious  orders,  or  to  persons  unable  to  aid  the  city  in  time  of  need  "  {ibid.,  i, 
p.  229). 

*  G^nestal,  La  Tenure  en  Bourgage,  p.  172. 

*  H.  M.  C,  Rep.,  9,  pt.  r,  p.  208,  a.  1422. 


MOBILITY  137 

however,  there  appears  to  have  been  opposition  to  devise;  it 
seems  that  the  burgesses  took  the  matter  into  their  own  hands, 
having  lost  patience  over  previous  and  unsuccessful  attempts 
to  obtain  this  privilege  by  petition  presented  in  Parliament.^ 
In  Cardiff,  and  probably  in  Tewkesbury,  both  of  which  had 
Norman  or  partly  Norman  customs,  though  the  charter  (cus- 
tomal)  was  highly  detailed,  it  contained  no  word  of  devise  of 
either  sort  of  tenement;  very  probably  restriction  was  complete.^ 
In  Manchester,  Stockport,  and  Salford  a  tenement  might  be 
devised  only  when  its  holder  had  no  heir.^  In  Salford  and  Stock- 
port, and  probably  in  Manchester  also,*  a  fee  of  4d.  was  paid 
by  the  devisee.  These  three  boroughs,  each  of  which  was  or 
wished  to  be  Bretollian,  show  that  the  dawn  of  the  English 
custom  of  devise  had  begun  to  enlighten  the  darkness  of  Bretol- 
lian ignorance.^      Had  these  boroughs  been  chartered  in  the 

*  Barnstaple's  historians,  though  accurate  in  a  few  minor  points,  contradict 
each  other,  and  the  central  authorities'  account  of  the  matter  as  well.  One  of  these 
narratives  (Chanter,  Barnstaple  Records,  i,  p.  139)  tells  us  that  an  inquisition  in  14 
Ed.  Ill  found  that  "  the  burgesses  of  the  said  town  ought  not  nor  have  hitherto 
used  to  bequeath  their  tenements  in  the  same  borough  in  their  testaments."  True 
so  far.  The  next  statement,  —  that  in  1 7  Ed.  Ill  the  burgesses  petitioned  the  king 
successfully  for  certain  privileges,  among  them  being  one  which  allowed  them  "  to 
bequeath  their  tenements  .  .  .  to  whom  they  will"  {ibid.,  i,  p.  140),  is  wholly 
astray.  Another  and  better  account  (Gribble,  Barnstaple,  pp.  342,  376)  tells 
somewhat  the  same  story,  but  postpones  the  gift  from  the  king,  "  for  a  fine  which 
they  [i.  e.,  the  burgesses]  have  made  with  us,"  till  1444,  though  realty  had  been 
devised  some  twenty  years  before  that  date.  It  is  true  that  in  1343  an  inquisition 
was  taken  in  answer  to  a  petition  from  the  men  of  Barnstaple  presented  in  Parlia- 
ment, but  nothing  followed,  the  finding  being  unfavorable  (C.  P.  R.,  a.  1343,  p.  90). 
The  next  year  another  inquisition  was  held  before  John  of  Ralegh,  J. ;  what  action 
the  king  took  is  not  stated.  There  was  much  opposition  to  giving  the  borough 
more  freedom  than  it  already  had,  especially  by  those  who  had  sokes  and  those 
who  had  the  right  to  hold  fairs  (C.  P.  R.,  a.  1344,  p.  290). 

2  Matthews,  Cardif  Records,  i,  p.  12,  ante  1147.  Both  boroughs  were  chartered 
by  the  Earl  of  Gloucester.     The  customs  were  not  Bretolhan. 

^  Tait,  Mediaeval  Manchester,  p.  67.  Their  charters  allow  that  a  "  burgensis,  si 
non  habuerit  heredem,  legare  poterit  burgagium  suum  et  catalla  sua,  cum  moriatur, 
ubicunque  ei  placuerit,  salvo  tamen  jure  meo."  See  also  Whitaker,  Manchester, 
ii,  p.  585.  In  each  borough  bequest  '  in  religione  '  was  forbidden:  in  Salford  chief 
lords  could  not  be  devisees. 

*  See  p.  55,  note  6. 

^  It  must  not  be  thought  that  all  baronially  or  episcopally  chartered  boroughs 
were  in  the  ignorant  class.     See,  for  instance,  Congleton  and  Chard. 


138  BURGAGE  TENURE  IN  ENGLAND 

twelfth  instead  of  the  thirteenth  century  it  is  very  likely  that 
devise  would  not  have  been  mentioned  at  all.  Such  is  the  cus- 
tom, or  lack  of  custom,  in  regard  to  devise  in  the  boroughs 
created  by  charters  based  on  Norman  models.  It  is,  however, 
the  borough  which  has  grown  which  makes  or  unmakes  a 
custom;  the  borough  which  is  created  merely  reflects  it.  In 
the  case  of  the  little  towns  last  dealt  with  the  reflection  is  that 
of  a  somewhat  ancient  light  from  over  the  sea.' 

From  these  unimportant  and  un-English  towns  turn  we  now 
to  East  AngUa,  a  region  whose  attitude  toward  devise  is  one  of 
conservatism  but  not  of  ignorance.  At  Norwich,  though  inheri- 
tance might  be  sold,  it  might  not  be  devised. ^  It  seems  that 
entailed  estates,  with  reversion,  were  quite  common  in  Norwich 
and  other  East  Anglian  towns,'  and  that  the  holders  of  such 
were  not  unwilling  to  treat  reversion  as  remainder.*  There 
are  many  sections  in  the  Norwich  customal  devoted  to  devise; 
most  of  them  refer  to  such  conditions  as  the  wife's  right  to  devise 
realty  in  presence  or  absence  of  heirs,  entailed  estates,  possible 
heirs,  and  other  conditions  of  the  same  sort.  These  are  in  the 
main  matters  of  procedure,  and  do  not  affect  the  point  at  issue.* 

At  Ipswich  all  who  had  tenements  '  of  their  several  purchases  ' 
might  devise  them;  therefore  by  implication  inheritance  was 
undevisable,^  a  restriction  which  was  still  in  force  in  the  middle 

'  On  the  other  hand  a  few  boroughs  created  in  the  same  period  as  the  Bretollian 
towns  reflect  the  bright  h'ght  from  Bristol  and  Dublin.  See  Waterford,  Limerick, 
and  others. 

^  Hudson  and  Tingey,  Records  of  Norwich,  i,  p.  155  (customal):  "  the  acquirer 
may  freely  in  his  testament  devise  .  .  .  the  tenement  acquired  by  him  ";  but 
"  a  tenement  descending  hereditarily  to  any  one  ...  or  that  ought  to  revert 
hereditarily  cannot  be  devised." 

*  See  below,  Ipswich  and  Yarmouth. 

*  The  customals  of  these  boroughs  lose  much  space  in  forbidding  devisees  to 
alienate  such  estates;  there  must  have  been  a  reason  to  evoke  these  clauses. 

'  In  13:6  the  finding  of  an  inquisition  ad  quod  damnum  (see  Stanley  v.  Mayor 
of  Norwich,  etc.,  f.  24)  was  that  "  all  the  tenants  of  that  messuage  from  time  whereof 
memory  is  not  have  .  .  .  bequeathed  [it]  at  their  pleasure,"  and  that  this  was  the 
common  custom  of  the  city.  It  was  not  the  custom  of  the  city  unless  the  messuage 
were  one  of  purchase  which  had  never  been  allowed  to  slip  back  into  inheritance. 

*  Le  Domesday  de  Gipprwyz,  p.  71.  This  Doom  Book,  from  which  Bacon  took 
the  customs  for  his  history  of  Ipswich,  was  compiled  soon  after  1290,  when,  the  old 
Doom  Book  having  been  stolen,  a  committee  of  24  burgesses  '  declared  the  ancient 


MOBILITY  139 

of  the  fourteenth  century,  judging  from  a  suit-at-law  in  the 
borough  court  concerning  a  devifee  of  inheritance.^  The  plain- 
tiff's legal  remedy  in  such  a  case  was  by  plea  of  abatement, 
which  must  be  entered  within  forty  days.^  At  Yarmouth  tene- 
ments '  in  fee-simple  '  were  devisable.^  It  is  somewhat  uncer- 
tain how  the  Yarmouth  burgesses  used  the  term  fee-simple, 
if  indeed  they  used  it  at  aU.*  Giving  the  term  its  proper  and 
legal  meaning  he  who  may  not  devise  nor  sell  his  inheritance 
has  an  estate  therein  but  for  term  of  Hfe,  and  not  in  fee-simple. 
It  appears,  therefore,  that  an  inheritance  was  undevisable  at 
Yarmouth  as  its  holder  did  not  have  therein  an  estate  in  fee- 
simple.^  Colchester,  too,  was  another  East  Anglian  borough 
of  restricted  devise.^  At  Newcastle  lands  of  purchase  only 
might  be  bequeathed.^ 

customs.'  They  much  resemble  the  Norwich  customs  in  respect  to  minor  matters, 
such  as  the  prohibition  of  devise  of  tenements  already  devised  with  reversion,  and 
so  on. 

^  Bacon,  Annalls  of  Ipswiche,  p.  69,  a.  1341.  Tenements  having  been  be- 
queathed by  A.  Davy  to  court  came  R.  Davy,  "  the  brother  and  heire  of  the  Testa- 
tor "  and  counterpleaded  the  granting  of  administration  on  the  ground  that  the 
tenements  "  were  of  the  Testators  inheritance  and  that  by  the  custome  of  the 
Towne  noe  man  can,  by  his  last  will  and  testament,  devise  his  inheritance  or  any 
part  thereof." 

*  Ihid.,  p.  25  (customal,  cap.  18). 
'  Swinden,  Yarmouth,  p.  158. 

*  In  his  comments  on  burgage  tenure  Littleton  says  "  if  a  man  deviseth  such 
tenements  "  (Littleton  was  dealing  with  entaUs,  certain  conditions  being  unful- 
filled) "  to  another  by  his  testament  .  .  .  and  dieth,  and  the  devisee  enter,  he 
hath  a  fee-simple  ":  conditions  fulfilled,  the  devisee  had  an  estate  but  for  term  of 
life  (Coke,  Commentary  upon  Littleton,  sec.  586).      See  also  Swinden,  Yarmouth, 

P-  159- 

^  As  late  as  1362  a  devisor  of  a  tenement  stated  distinctly  that  it  was  his  purchase 
(Swinden,  Yarmouth,  p.  806,  note). 

*  Cromwell,  Colchester,  ii,  p.  260;  Morant,  Colchester,  p.  88. 

^  The  interpretation  of  the  Newcastle  custom  presents  the  same  difficulty  as 
that  of  York.  While  York  makes  a  specious  case  for  freedom  and  must  be  given 
the  decision,  Newcastle  is  more  ingenuous.  Its  historian  (Brand,  Newcastle,  ii, 
p.  143,  note,  a.  1276)  draws  no  line  between  inheritance  and  purchase:  "  Bur- 
genses  Novi  Castri  super  Tynam  possint  legare  terras  et  tenementa  sua  tanquam 
catalla  cui  voluerint."  Before  this,  however,  the  charter  of  121 7  had  granted  that 
"  rectum  eis  [i.  e.,  tenementis]  teneatur  secundum  consuetudinem  .  .  .  Winton  '  " 
{ibid.,  ii,  p.  136,  note  x).  Though  Winchester  was  probably  a  city  of  restricted 
devise,  this  is  not  quite  conclusive  evidence;  affiliation  of  customs  was  very  elastic 


140  BURGAGE  TENURE  IN  ENGLAND 

Shrewsbury  '  and  Rhuddlan  have  been  claimed  as  boroughs 
with  Norman  customs.  In  each,  therefore,  devise  should  be 
unknown.  Purchase,  however,  was  devisable  in  both  boroughs.^ 
Bury  Saint  Edmunds  had  a  custom  peculiar  to  itself:  purchase 
was  devisable  and  half  of  inheritance  as  well ; '  the  customal 
even  provided  a  remedy  at  law  for  defrauded  heirs.*  This 
charter  (1327)  was  virtually  drawn  up  by  the  burgesses  and  the 
limitation  on  the  devise  of  inheritance  was  placed  there  by  them- 
selves, no  doubt  to  prevent  a  dying  sinner  from  saving  his  soul 
at  his  heir's  expense.  More  monachorum,  the  saintly  guardians 
of  St.  Edmund's  shrine  preferred  gifts,  naturally  largest  when 
extracted  to  the  sound  of  the  passing  bell.  But  for  the  fear 
of  death  many  a  monk  might  have  been  an  honest  worker.  The 
custom  at  Bury  Saint  Edmunds  is  peculiar  in  another  way; 
inheritance  might  not  be  sold,  though  half  of  it  might  be  devised. 
As  far  as  our  evidence  goes,  this  contemporaneousness  of  re- 
stricted sale  and  free  devise  existed  in  no  other  borough  in 
England. 

in  England.  See  Gross,  "Affiliation  of  Mediaeval  Boroughs"  {Antiquary,  1885, 
pp.  142-147,  253-259;  reprinted,  with  additions,  in  the  same  author's  The  Gild 
Merchant  (1890),  i,  pp.  241-281).  There  is,  however,  corroboration  elsewhere; 
"  Newcastle  .  .  .  Every  burgess  according  to  the  customs  of  the  borough  can 
bequeath  lands  .  .  .  which  he  has  of  his  own  purchase  to  whomsoever  he  will  " 
(C.  /.  M .,  ii,  p.  94,  4  Ed.  I).  Sec  also  C.  P.  R.,  a.  1276,  pp.  140  and  119:  "  that 
.  .  .  according  to  a  custom  of  Newcastle  ...  a  burgess  thereof  should  be  able  to 
devise  as  his  chattels  .  .  .  lands  .  .  .  which  he  had  by  purchase." 

'  Madox,  Firma  Burgi,  p.  128,  note  q,  20  Ed.  I:  L.  "  dicit  etiam  quod  licitum 
est  secundum  consuetudinem  civitatis  Salopesbiriae  .  .  .  tcnemcnta  perquisita 
legare."  For  the  same  case  see  Horwood  and  Pike,  Year  Books,  Michclmas  term, 
1292,  pp.  262-266.  A  writ  of  N.  D.  was  procured,  the  city  apparently  having  no 
Assize  of  Fresh  Force.     The  jury  answered  as  above  in  the  royal  court. 

'  For  Rhuddlan  see  Parliamentary  Papers,  1835,  xxvi,  p.  2838:  "  Liccat  uni- 
cuique  civi  .  .  .  tencmenta  sua  quae  sibi  adqucsierat  ...  in  testamento  suo  .  .  . 
legare."  This  provision  was  said  to  be  taken  from  the  Hereford  custom.  Prob- 
ably at  that  time  purchase  alone  might  be  bequeathed  in  Hereford. 

^  .\rnold,  Memorials  of  St.  I'ldmund's  Abbey,  iii,  p.  309:  "  we  "  (i.  c,  the  abbot) 
"...  grant  that  no  man  have  power  to  devise  more  than  the  half  of  his  inheri- 
tance." "  We  .  .  .  grant  that  every  one  may  have  power  to  disjxjse  entirely  by 
will  of  tenements  which  he  shall  have  by  purchase." 

*  Ibid.,  iii,  p.  311.  The  "next  heir  comes  before  the  Alderman  and  the 
burgesses  on  the  second  day  after  proclamation  .  .  .  show  his  title,"  etc.,  and  the 
court  decides  whether  it  be  good. 


MOBILITY  141 

At  Dunwich  purchase  was  devisable.^  The  avidity  with 
which  Henry  III  pursued  the  will  o'  the  wisp  of  burghal  escheat 
enables  us  to  place  Southampton  among  the  boroughs  where 
purchase  only  might  be  willed. ^  Tenements  in  that  borough 
which  a  burgess  had  bought  he  devised  without  gainsay;  he 
made  no  effort  to  devise  his  other  tenements,  to  which  there 
were  heirs  who  claimed  them.  Portsmouth  was  a  borough  of 
restriction;  ^  Weymouth  was  very  probably  in  the  same  class.^ 

In  a  few  of  these  boroughs  there  were  small  restrictions,  some 
of  which  are  hard  to  explain,  in  respect  to  freedom  of  devise. 
Thus  at  London,  though  devise  was  so  free  that  the  mere  fact 
that  tenements  were  situated  therein  sufficed  to  prove  their 
devisabihty,^  there  was  one  limitation  which  lasted  till  the  close 
of  the  seventeenth  century,  —  a  husband  might  not  devise 
tenements  to  his  wife  for  a  longer  term  than  her  Hfe.^  At  Dub- 
lin,'' and  probably  in  its  daughter  towns,  it  is  said  that  a  bequest 
made  by  a  citizen  while  the  heir  was  abroad  was  invalid.  In 
addition  there  were  provisions  to  prevent  unjust  disherison  of 
heirs,  though  how  the  citizens  put  these  provisions  into  practice 
or  reconciled  them  with  their  custom  of  devise  is  not  easy  to 
say.^ 

^  Hardy,  Rotuli  Chartarum,  p.  211. 

^  C.  I.  M.,  i,  p.  135,  45  Henry  III.  The  inquest  finding  in  the  case  is  long  and 
complicated,  for  the  deceased  burgess  seems  to  have  been  a  man  of  great  posses- 
sions, having  "  divers  tenements  held  of  divers  lords."  To  these  tenements  he  had 
"  heirs  who  claim  them."  In  addition  he  was  chief  lord  of  several  shops  which  he 
had  bought,  "  which  the  merchants  of  Due  and  Ipri  [Douai  and  Ypres]  held  of 
him,  which  he  had  by  purchase  .  .  .  and  bequeathed  .  .  .  and  two  shops  held  of 
the  said  bishop  [of  Winchester]  which  he  had  by  similar  purchase." 

^  East,  Records  of  Portsmouth,  pp.  5,  6. 

^  Moule,  Charters  of  Weymouth  and  Melcombe  Regis,  p.  16:  the  charter  granted 
the  same  degree  of  mobility  as  at  Southampton  and  Portsmouth.  The  Melcombe 
Regis  custom  probably  followed  that  of  Weymouth. 

*  C.  I.  M.,  ii,  p.  362,  14  Ed.  I:  R.  held  tenements  in  London,  "  so  that  he  could 
bequeath  them  to  whomsoever  he  would." 

^  Sharpe,  Calendar  of  Wills,  i,  p.  xxxviii.  The  author  instances  several  cases  in 
each  of  which  a  widow  chose  to  forego  probate  and  take  possession  of  tenements 
devised  to  her  in  defiance  of  the  custom  rather  than  risk  a  judgment  in  the  Hustings. 

'  Gilbert,  Records  of  Dublin,  i,  p.  229. 

*  See  Gilbert,  Historical  and  Municipal  Documents  of  Ireland,  iiy2-ij20,  pp.  262- 
263.  Disherison  in  anger  was  forbidden.    All  this  is  from  an  abstract  of  the  "  Chain- 


142  BURGAGE  TENURE  IN  ENGLAND 

In  such  places  as  London  and  Oxford  it  is  hard  to  know  when 
restrictions  on  devise  had  been  abolished.  It  seems  that  free- 
dom from  restriction  was  the  result  of  a  progressive  movement; 
that  in  some  boroughs  its  beginning  was  so  early  that  it  was 
received,  when  existing  records  begin,  as  a  custom  descending 
from  beyond  the  time  of  legal  memory;  that  it  was  obtained  by 
charter  in  a  few  places ;  and  that  in  others  it  overcame  the  older 
custom,  as  the  change  in  the  collective  mind  of  the  burgesses 
changed  the  burghal  land  law.*  At  times  there  were  attempts 
at  defiance  ^  or  evasion  of  the  custom  which  forbade  devise  of 
inheritance,  but  in  such  cases  the  heir  had  only  to  lay  his  claims 
and  title  before  the  bailiffs  and  burgesses  in  the  borough  court; 
if  it  did  not  right  him  the  royal  courts  were  open. 

The  most  important  economic  question  in  connection  with 
restricted  devise  is  the  extent  to  which  it  affected  the  mobility 
of  urban  tenements.  In  the  boroughs  where  restriction  existed 
an  inherited  messuage  could  not  legally  be  bequeathed,  but  it 
could  be  divided,  and  in  some  cases  might  be  sold.  How  land  of 
inheritance  might  become  land  of  purchase  in  the  boroughs 
where  both  sale  and  devise  were  fettered  has  been  previously 
explained;''  once  transformed  it  would  be  the  holder's  own  fault 
or  intention  if  it  should  slip  back  into  land  of  inheritance, 
unless  he  dwelt  in  one  of  those  benighted  boroughs  which  knew 
no  devise  or  sale  without  consent.  For,  though  it  is  doubtful 
whether  a  devise  of  land  of  purchase  in  favor  of  one  who  would 
inherit  in  the  absence  of  a  will  was  regarded  by  the  courts 
as  of   any  legal  effect,'*   a   purchased  tenement  might   nearly 

Book."  There  would  be  no  need  of  such  provisions  where  inheritance  was  undevis- 
able;  '  purchase  '  had  no  heir  any  more  than  a  living  man  has  an  heir. 

At  Waterford  it  is  said  (Bateson,  Borough  Customs,  ii,  p.  96)  that  an  heir  may 
forbid  anyone  to  buy,  and  afterward  may  recover,  if  his  father  has  disinherited 
him  in  anger.  How  was  the  anger  to  be  proved,  and  what  had  the  courts  to  say 
about  motive  rather  than  fact  at  this  period  ?  "  The  thought  of  man  shall  not  be 
tried,"  etc. 

'  In  this  respect  and  connection  the  burgess  of  the  thirteenth  century  seems  less 
conservative  than  the  burgess  of  the  fifteenth. 

*  As  at  Bristol  in  9  Ed.  I  (Roberts,  Cal.  Gcnealogicum,  i,  p.  313). 
'  See  p.  125. 

*  See  Horwood  and  Pike,  Year  Books,  a.  1292,  pp.  262,  266.  A  son  had  bought 
his  father's  share  of  a  messuage  in   Shrewsbury,  a    borough  where  sale  or  devise 


MOBILITY  143 

always  be  sold  to  one  not  an  heir.  In  boroughs  where  sale 
was  free,  as  Norwich,  and  in  almost  any  borough  through 
sale  in  need,  one  who  wished  to  prevent  descent  of  real  property 
in  accordance  with  the  burghal  law  of  intestacy  might  sell  it 
and  make  sure.^  Probably,  however,  neither  this  nor  any 
other  plan  to  avoid  restriction  was  often  followed  in  mediaeval 
days.  The  burgess  of  that  period  usually  preferred  to  see 
the  son  in  the  father's  place,  Hving  in  the  messuage  once  his, 
taking  his  vacant  place  in  the  gildhall,  and  his  seat  within  the 
four  benches;  while  the  law  of  devise  in  the  older  boroughs 
was  only  what  law  is  at  any  time  and  in  any  place,  the  public 
opinion  of  a  great  majority,  and  subject,  therefore,  to  amend- 
ment and  change. 

And  when  there  came  a  time  in  which  Hmitation  of  devise 
was  felt  to  be  a  burden,  it  is  unHkely  that  the  custom  would 
long  be  allowed  to  block  the  way,  especially  in  the  commercial 
towns;  usurpation,  collusion,  now  and  again  a  royal  grant,^ 
in  the  older  and  important  boroughs  change  in  the  customal, 
and  men  forgot  that  certain  sorts  of  tenements  were  once  not 
devisable.  This  change  in  respect  to  free  devise  seems  to  have 
been  very  gradual.  Oftentimes,  as  at  Dublin  and  Bristol, 
it  was  never  formally  enacted  as  a  part  of  the  ancient  customal, 
or  else  its  registration  has  been  lost.  In  these  cases  such  change 
as  there  was  is  often  shown  by  the  records  of  the  courts.  Despite 
its  restrictions,  devise  of  land  presents  the  aspect  seen  by  Bracton 

of  inheritance  was  not  allowed.  This  share  would  have  been  his  inheritance  at  his 
father's  death.  The  son  devised  the  messuage:  it  was  decided  by  the  court,  that 
this  did  not  keep  the  tenement  one  of  purchase.  Yet  at  Kingsthorpe,  which, 
though  not  a  borough,  was  allowed  to  imitate  many  of  the  customs  of  burgage  ten- 
ure, fjossibly  because  it  was  part  of  the  ancient  demesne,  one  might  devise  a  mes- 
suage which  one  had  by  gift,  sale,  or  bequest,  but  not  a  tenement  of  inheritance 
(Glover,  Kingsthorpiana,  p.  41). 

^  Some  of  the  quick  and  circuitous  sales  at  Norwich  may  have  had  this  as  their 
object.  See  Hudson  and  Tingey,  Records  of  Norwich,  i,  p.  233,  a.  1287.  A. 
granted  a  messuage  to  B.  on  July  29,  B.  granted  it  to  C.  on  August  4,  C.  granted 
it  to  A.  on  August  9. 

*  Sometimes  devise  was  petitioned  for.  In  1298  the  men  of  Kingston-upon-Hull 
and  Ravenser  prayed  "  qe  le  Rei  voile  faire  le  dite  Ville  Fraunk  Burg  .  .  .  et 
qil  peussent  leur  Tenemenz  en  la  dite  Vile  deviser  en  leur  Lit  mortel  "  (Thompson^ 
Holderness,  p.  147).     There  is  nothing  to  show  that  their  request  was  granted. 


144  BURGAGE  TENURE  IN  ENGLAND 

as  the  leading  feature  of  English  burgage  tenure,  especially 
in  the  contrast  between  the  mobility  which  it  secured  and  the 
feudal  rigidity  beyond  the  borough  bounds,  where  '  God  alone 
and  not  man  could  make  an  heir.'  * 

The  Rights  of  the  Femme  Covert 

The  rights  which  a  wife  had  in  her  own  and  her  husband's 
tenements  were  fairly  uniform  throughout  the  English  boroughs. 
In  one  particular  the  uniformity  was  absolute;  the  wife  had  the 
right  to  give  or  to  withhold  her  consent  to  any  alienation  made 
by  her  husband  of  a  messuage  she  brought  at  marriage.  If 
the  husband  alienated  such  without  her  consent,  or  even  with  it, 
the  transfer  was  void  in  the  first  case,  and  in  the  second  she  could 
recover  by  plea  of  duress,  unless  this  consent  were  given  out 
of  his  presence  and  in  that  of  the  bailiffs.  The  husband  might, 
as  a  rule,  alienate  without  let  a  tenement  which  he  held  before 
marriage,  subject  only  to  the  custom  of  the  borough  as  regards 
alienation.  If  he  acquired  tenements  after  marriage  his  wife 
must  consent  to  their  alienation,  though  not  always  in  the  public 
way  in  which  she  assented  to  the  alienation  of  a  tenement  of 
her  own.  This  feature,  or  rather  fiction,  of  the  burghal  land  law 
arose  from  the  idea  that  the  messuages  had  been  jointly  acquired 

'  In  connection  with  devise  some  significance  has  been  attached  by  various 
writers  to  the  expression  '  tanquam  catalla,'  as  if  the  messuage's  being  sold  or 
devised  arose  out  of  its  being  first  thought  of  as  a  chattel  and  therefore  saleable 
or  devisable  (see,  for  instance,  Tait,  Mediaeval  Manchester,  p.  68:  "  which,  being 
'  comparable  to  chattels  '  ").  A  messuage  cannot  be  compared  with  a  chattel 
until  it  is  first  sold.  The  English  burgesses  seldom  used  the  jihrase;  when  they 
did  it  was  commonly  connected  with  devise  and  not  sale.  In  addition,  whatever 
they  said  they  did  not  devise  their  tenements  *  tanquam  catalla,'  the  custom  as 
regards  devise  of  lands  and  that  in  respect  to  devise  of  chattels  were  wholly  different. 
In  Flanders  and  at  times  in  Germany  there  seems  to  be  good  reason  for  regarding 
the  house  as  a  chattel,  it  and  the  land  under  it  often  being  subject  to  ditTerent 
customs  in  respect  to  sale.  This  was  never  the  case  in  England,  land  and  house 
went  together  in  freedom  and  in  restriction,  each  was  a  burgage  tenement  and  both 
were  a  burgage  tenement  (sec  p.  92). 

See,  for  examples,  most  of  which  are  '  ct  sua  catalla '  or  merely  '  et  catalla  ' 
and  not  '  tancjuam  catalla,'  Hrand,  Xrarasllc,  ii,  p.  143,  note;  Widdrington, 
Analcrta  Eboracensia,  p.  59;  Cooper,  Cambridge,  p.  74;  Stevenson,  Records  of  Not- 
tingham, i,  p.  230;  Parliamentary  Papers,  1835,  xxvi,  p.  2838  (Rhuddlan),  and  a 
few  others. 


MOBILITY  145 

and  so  must  be  jointly  sold/  a  feature  common  to  urban  tenure 
in  northern  and  western  Europe.'' 

At  Norwich  a  wife's  consent  was  necessary  for  the  devise 
of  a  messuage  acquired  by  her  husband  after  marriage.^  As  a 
rule  a  husband  might  devise  tenements  to  his  wife,  subject,  of 
course,  to  the  custom  in  respect  to  devise  for  any  particular 
borough,^  though  in  London  such  a  devise  was  limited  to  the 
term  of  the  devisee's  life,^  and  in  Uke  manner  a  wife  might  will 
her  own  realty  to  her  husband.^  At  Norwich,  as  in  most  bor- 
oughs, a  wife  might  devise  the  messuages  she  held  at  marriage 
*  to  whomsoever  it  shall  please  her  away  from  her  husband,' 
if  no  child  had  been  born  from  their  marriage.  Otherwise 
she  might  still  devise  them,  but  her  husband  was  tenant  for  life 
by  the  courtesy  of  England.'  At  Ipswich  the  husband's  consent 
was  necessary  to  a  devise  by  a  wife,  and  she  must  not  disinherit 
her  heirs.^     It  seems  that  in  most  boroughs  the  law  of  restriction, 

'  Conveyances  of  such  tenements  usually  follow  the  formula:  '  A.  and  his  wife  B. 
give,  grant,  ...  to  X.  and  his  wife  Z.  (or  to  X.  alone),'  etc.  See  Hudson  and 
Tingey,  Records  of  Nor-mich,  i,  pp.  156-157  and  deeds  everywhere:  the  "  man  and 
his  wife  have  together  and  conjointly  acquired."  The  necessity  of  the  wife's 
consent  to  alienation  of  realty  sometimes  led  to  special  inducements  being  offered 
her.  Temp.  Ed.  I  a  '  stall '  in  Bridgwater  changed  hands  for  20s.:  in  addition  the 
grantee  gave  the  grantor's  wife  a  pig  worth  2s.,  "  to  have  her  consent  beforehand  " 
(H.  M.  C,  Rep.,  3,  p.  311).  At  Wells  c.  1200  a  messuage  was  granted  for  50s. 
praemanibus  and  a  yearly  rent  of  los.,  also  6d.  to  each  of  the  grantor's  sons  and 
to  his  wife  a  "  golden  fermail  "  (ibid.,  p.  360),  which  was,  methinks,  some  sort  of 
buckle.  In  Clifton  (Dartmouth)  temp.  Henry  HI,  a  tenement  was  conveyed  by 
Richard  de  Sege  to  Martin  Fake,  for  4  marks  beforehand  and  an  annual  rent  of  2s. 
Martin  contributed  also  to  the  grantor's  family:  to  his  wife  2s.,  to  a  daughter  is., 
to  two  other  daughters  6d.  each,  to  one  son  a  pair  of  boots,  and  to  another  a 
'tunica'  (ibid.,  5,  p.  600).  These  payments  to  possible  heirs  probably  aimed 
at  forestalling  the  exercise  of  the  kin's  retrait.  In  another  transfer  the  grantee 
abjured  the  lure  of  money  and  fermails  and  paid  a  barrel  of  wine  praemanibus. 
The  subsequent  proceedings  are  not  recorded. 

^  See  Arnold,  Geschichtedes  Eigentufns  in  den  deutschen  Stddlen,  p.  166;  Genestal, 
La  Tenure  en  Boiirgage,  pp.  76  et  seq. 

^  Hudson  and  Tingey,  Records  of  Norwich,  i,  pp.  156-157. 

*  See  Widdrington,  Analecta  Eboracensia,  p.  67;  Gilbert,  Records  of  Dublin, 
i,  pp.  489-490,  a.  1483,   and  others. 

*  Sharpe,  Calendar  of  Wills,  i,  p.  .xxxviii. 

8  H.  M.  C,  Rep.,  9,  pt.  I,  p.  171;  C.  A.  D.,  i,  p.  68  (Reading). 
^  Hudson  and  Tingey,  Records  of  Norwich,  i,  p.  156. 

*  Bacon,  Annalls  of  Ipswiche,  pp.  17,  27,  a.  1290. 


146  BURGAGE  TENURE  IN  ENGLAND 

where  it  existed,  in  respect  to  sale  and  devise  of  realty  was 
relaxed  somewhat  for  tenements  which  a  wife  brought  at  marriage. 
The  chief  peculiarity,  however,  of  the  burghal  land  law  in  respect 
to  such  tenements,  and  the  difference  between  it  and  the  common 
land  law,  was  the  idea  of  joint  acquisition  and  joint  alienation.^ 

Mortgage 

In  most  boroughs  the  right  to  mortgage  was  subject  to  the 
same  restrictions,  or  enjoyed  the  same  freedom,  as  the  right  to 
sell,  for  the  mediaeval  mortgage  was  itself  a  sale,  in  form  at  least, 
whatever  it  might  be  in  fact.  As  a  result  the  customals  of  the 
older  boroughs  seldom  or  never  used  the  term  at  all:  there  was 
no  need  to  duplicate  already  existing  clauses  in  respect  to  sale, 
even  when  the  grant  was  only  for  a  period  of  years  or  until  a 
certain  sum  should  be  paid  the  grantee.  In  the  boroughs  by 
charter,  however,  the  right  to  mortgage  a  messuage  was  often 
expressly  permitted.  Such  was  the  case  at  Tewkesbury  -  and 
probably  at  Cardiff.  The  charters  of  the  boroughs  of  Ireland 
usually  recognized  the  right  to  '  pledge  tenements  ' ;  ^  the  char- 

'  Dower  was  not  peculiar  to  burgage  tenure.  It  was,  however,  somewhat 
variable  in  the  boroughs,  usually  a  half  or  a  third  (depending  on  the  absence 
or  presence  of  children)  of  the  husband's  messuages,  or  their  revenue,  for  life.  Some 
of  the  customals  allowed  the  widow  her  husband's  chief  house  as  her  free-bench 
(frank-bank),  if  he  had  more  than  one  messuage  (Bacon,  Annalls  of  I pswiche, 
p.  34).  Those  who  had  no  right  of  frank-bank  were  entitled  to  the  widow's  quaran- 
tine. Neither  waste  nor  alienation  was  allowed;  a  widow  who  defied  the  law  was 
liable  to  lose  her  dower  and  to  be  cast  in  damages  as  well  (Bacon,  Anmills,  p.  9). 
At  some  boroughs  a  widow  who  remarried  lost  her  dower  and  frank-bank  (Tait, 
Mediaeval  Manchester,  p.  70).  See  for  dower  Gilbert,  Records  of  Dublin,  i,  p.  97; 
Simpson,  Derby,  i,  p.  44;  Stevenson,  Records  of  Nottingham,  pp.  1 25, 169;  Markham, 
Liber  Ciistumarum,  p.  20;  Hudson  and  Tingey,  Records  of  Noru-ich,  i,  pp.  296-297; 
and  almost  any  of  the  better  class  of  borough  histories. 

Dower  was  compulsory  where  devise  of  inheritance  was  not  permissible  and 
when  a  burgess  neglected  to  make  a  will  in  a  borough  of  free  devise.  Bracton 
says  {De  Legibiis,  i,  p.  164,  De  dote  uxoris  bastardi):  "  Sed  de  dote  mulicris 
quid  fiet  in  hoc  casu  ?  ex  quo  warrantum  non  habet  de  dote  sua,  cum  nee  ai)pareat 
haeres  nee  assignatus,  nee  etiam  legatarius,  si  forte  Icgatum  fuerit,  sicut  in  bur- 
gagiis;  mulicr  in  omnibus  istis  casibus  dotem  obtinebit."  From  an  examination 
of  many  testaments  in  towns  of  free  devise  it  seems  plain  that  dower  was  compul- 
sor>'  only  in  connection  with  intestacy. 

'  Bennett,  Trwhesbury,  p.  321. 

'  See  Gale,  Corp(yrate  System  of  Ireland,  app.,  pp.  xii,  xxiii  et  pass.  :  "  vendere 
vel  invadiarc  "  etc. 


MOBILITY  147 

ters  to  the  burgesses  of  Chard  ^  and  Altringham  ^  had  like  clauses.^ 
At  times  mortgaging  without  the  consent  of  the  lord  of  the 
borough  was  forbidden  for  special  cases.^  The  charter  of  1227 
to  the  burgesses  of  Salisbury  forbade  them  to  mortgage  their 
messuages  without  the  consent  of  the  bishop  of  Sahsbury;  ^ 
the  charter  of  1305  limited  this  interference  to  cases  where 
religiosi  were  the  mortgagees.^ 

Though  the  form  of  the  ordinary  borough  mortgage  was  that 
of  a  grant  or  conveyance  with  a  clause  reserving  the  right  of 
redemption,  at  times  the  word  mortgage  was  used  openly.'^ 
The  date  on  which  payment  must  be  made  commonly  appeared 
in  the  deed ;  ^  this  payment  was  usually  a  lump  sum,  but  might 
be  made  by  instalments.^  That  the  grantor  commonly  continued 
to  live  in  the  mortgaged  messuage,  though  no  longer  its  owner 
(or  lowest  holder);  that  the  price  to  be  repaid  was  larger  than 
the  loan  by  enough  to  allow  interest  and  so  evade  the  canon 
law;  that  he  who  defaulted  in  his  payment  might  be  ejected; 
that  the  tenement  passed  wholly  to  the  mortgagee  regardless 

1  C.P.R.,a.  1286,  p.  216. 
^  Parliamentary  Papers,  1835,  xxvi,  p.  2838. 

'  Grants  sometimes  contain  permission  to  mortgage,  as  at  Kenfig,  c.  1270-79, 
"  cuicunque  .  .  .  invadiare  .  .  .  voluerit  "  (Clark,  Cartae  Glamor g.,  iii,  p.  530). 

*  This  could  be  the  case  only  in  trifling  towns,  commonly  with  ecclesiastical 
lords. 

*  Jones  and  Macray,  Charters  and  Documents  of  Salisbury,  pp.  176-177.  This 
charter  was  an  adjustment  by  the  king  of  the  disputes  between  the  bishop  and  his 
burgesses.  Lay  lords  and  their  burgesses  disagreed  only  at  times;  ecclesiastical 
lords  were  nearly  always  at  strife  with  their  boroughs,  even  with  boroughs  in  which 
they  had  nothing  but  sokes.     Vide  Norwich. 

^  Hoare,  History  of  Modern  Wiltshire,  vi,  p.  738.  At  Kingsthorpe  no  one  was 
permitted  to  mortgage  his  tenement  for  more  than  three  years  on  pain  of  forfeiture 
thereof  to  the  town  (Glover,  Kingsthor plana,  p.  92). 

^  See  Baines,  Liverpool,  \,  p.  145.  "  Be  it  known  .  .  .  that  I  .  .  .  have 
given  .  .  .  and  by  this  deed  confirmed  in  mortgage  "  half  a  messuage,  "  to  be 
held  "  till  £17  "  are  paid."  No  limit  in  time  was  set  for  payment:  if  the  mortgagee 
did  not  take  possession  in  due  season  he  might  as  well  consider  his  £17  a  gift. 

*  As  at  Southampton,  16  Rich.  II.  A  '  deed  of  sale  '  was  made,  the  seller 
reserving  the  right  of  redemption  on  payment  of  16  marks  on  or  before  a  fixed  date 
(H.  M.  C.,  Rep.,  II,  app.,  pt.  3,  p.  73). 

^  H.  M.  C.,  Rep.,  5,  p.  514,  5  Henry  V.     "  If  the  said  G.  C,  or  any  one  in  his 
name,  shall  pay  to  them  [i.  e.,  the  grantees]  .  .  .  los.  and  continued  sums  of  los.,  ' 
amounting  in  all  to  a  sum  of  £7  los.,  then  the  said  deed  shall  be  held  as  null." 


148  BURGAGE  TENURE  IN  ENGLAND 

of  its  excess  value  over  that  of  the  loan,  —  for  there  was  no 
equity  of  redemption  in  that  period,  —  are  accompaniments 
which  need  no  proof.  The  mortgagee  might  sell  the  tenement, 
deduct  his  debt,  and  pay  the  '  hyperocha  '  to  the  mortgagor. 
It  would  be  rating  human  nature  too  high  to  think  that  he  often 
did  so.^ 

Accumulation  of  Burgages 

From  Waterford  in  1574  came  a  complaint  that  there  was  but 
little  land  for  sale  in  the  borough,  the  bulk  of  the  tenements 
being  held  by  the  church,  and  other  outsiders,  who  preferred  to 
lease. 2  Most  boroughs  might  make  the  same  complaint,  for 
by  that  time  outside  holdership  was  the  rule  for  at  least  the 
'  original  '  burgage  tenements.  It  is  apparent  that  the  Water- 
ford  burgesses'  objection  was  economic,  for  the  date  is  too  early 
for  foreign  ownership  of  burgages  to  have  much  poHtical  effect, 
discussion  of  which  is  irrelevant  to  our  subject  and  beyond  our 
period.  The  chief  sources  for  this  matter  are  Calendars  of  Wills 
and  of  Inquisitions  post  mortem,  which  afford  a  vast  number  of 
illustrations. 

For  instance,  at  Southampton  a  burgess  named  Nicholas 
Hachard  '  was  a  notable  accumulator.  He  was  surpassed,  how- 
ever, by  John  Ouhtred  of  Scarborough,  who  held  more  than 
ninety  messuages,  most  of  them  directly  of  the  king.''  The 
bulk  of  these  tenements  came  to  him  from  his  uncle,  Robert  of 
Scarborough,  and  passed  from  him  to  his  daughter  and  sole 
and  minor  heir,  who,  on  account  of  her  holding  in  the  foreign, 
became  a  ward  under  the  feudal  tenure  and  was  married  into 

'  For  mortgage  see  Dr.  H.  R.  Hazeltine,  Die  Geschichte  des  englischen  Pfand- 
rechts  (Hrcslau,  1907),  especially  p.  291;  also  T.  E.  Scrutton,  The  Injluence  of  the 
Roman  Law  on  the  Law  of  England  (Cambridge,  1885),  pp.  157  et  pass. 

'  H.  M.  C,  Rep.,  10,  app.,  pt.  5,  p.  333. 

'  C.  /.  M .,  i,  p.  135.  He  had  14  shops,  land  outside  the  wall,  and  many  tene- 
ments within.     45  Henry  HI. 

*  See  Brown,  Yorkshire  Inquisitions,  iii,  p.  91-93,  a.  1298.  His  capital  messuage 
was  worth  by  the  year  40s.;  he  held  also  8  messuages  occupied  by  '  free  tenants,' 
that  is,  at  fee-farm;  46  messuages  renting  at  is.  to  24s.;  40  messuages  occupied 
by  tenants  at  will,  rents  of  the  same  i8d.  to  i6s.,  etc.  For  all  these  he  paid  27s. 
to  the  Firma  Burgi;  his  rents  were  £40  and  more.  He  also  held  land  in  the  honor 
of  Albemarle,  the  manor  of  Gowthorpe,  etc.,  by  knight  service. 


MOBILITY  149 

a  county  family.  Thereafter  the  holdership  would  probably 
continue  to  be  aristocratic.  In  London  the  bishop  of  Ely  held, 
though  not  as  bishop,  many  tenements  and  rents  of  burgess 
lords. ^  In  Southampton  widows  and  dukes  appear  as  accumula- 
tors.2  Bristol  was  a  city  of  large  accumulations;  ^  even  vis- 
counts and  queens  had  tenements  there. **  Perhaps  the  greatest 
holder  of  burgage  tenements  in  the  realm  was  W.  Canyngs,  or 
Cannings,  '  merchant  and  burgess  '  of  Bristol.-^ 

Multiplication  of  such  records  would  be  mere  and  easy  repeti- 
tion, for  every  borough  with  any  pretension  to  commerce  shows 
this  condition  to  a  greater  or  lesser  extent.  As  a  result  of  its 
praiseworthy  and  unceasing  labor  in  the  care  of  souls,  especially 
departing  souls,  in  the  first  half  of  the  sixteenth  century  out  of 
269  burgage  tenements  in  Cardiff  the  church  held  105I;  '  lay 
burgage  tenants  '  held  but  seventy-five  tenements,  the  corpora- 
tion and  clerical  lords  (seculars  holding  as  individuals)  having 
the  rest.^  This  proportion,  about  two-fifths,  is  somewhat 
higher  than  the  usual  amount  of  urban  realty  in  the  dead  hand; 
perhaps  a  third  would  be  nearer  the  average.  But  busy  friars 
and  weary  monks  were  soon  to  rest  from  their  toil  in  the  vineyard 

^  C.  I.  M.,  ii,  p.  478,  18  Ed.  I.  He  held  in  '  Holebum  '  {sic)  "  a  tenement 
upon  which  his  hall  .  .  .  [is]  built,"  service  los.  4d.;  4  tenements  at  2s.  to  6s.;  a 
messuage  whose  rent  was  a  rose;  another  by  service  of  i4d.  to  one  lord  and  14s.  to  a 
second ;  and  many  other  messuages,  besides  103s.  3d.  of  rent. 

2  H.  M.  C,  Rep.,  II,  app.,  pt.  3,  p.  85,  i  Ed.  IV.  One  widow  granted  13  mes- 
suages.    The  Duke  of  Exeter  held  others  {ibid.,  p.  86). 

^  Bickley,  Little  Red  Book  of  Bristol,  i,  p.  94,  a.  1361.  One  burgess  complains 
that  she  has  been  disseized  of  4  messuages,  13  shops,  125  acres  of  land,  and  20s.  of 
rent.  In  1453  an  inquisition  shows  a  burgess  to  have  held  15  tenements,  in  four  of 
which  were  25  shops;  12  of  the  tenements  he  held  from  a  '  gentleman  '  {ibid.,  ii, 
p.  196). 

^  See  Little  Red  Book,  i,  p.  126  for  the  queen's  tenements. 

See  C.  I.  M.,  Henry  VII,  i,  p.  337.  Viscount  Lisle  held  84  messuages,  19  acres 
of  land,  the  advowson  of  a  church,  etc.,  in  Bristol,  all  worth  £30  a  year.  He  held 
of  the  mayor  and  community.  In  Worcester  he  held  the  "  fourth  part  of  24  bur- 
gages "  {ibid.,  p.  339);  and  he  held  many  messuages  in  other  boroughs. 

Joan  Barre,  a  widow,  had  10  messuages  in  Monmouth  held  of  the  prior  of  Mon- 
mouth, and  10  in  Chepstow  held  of  the  Earl  of  Huntingdon  {ibid.,  p.  47). 

^  See  Bickley,  Calendar  of  Deeds,  chiefly  Relating  to  Bristol,  pp.  vii  f.;  also  Wadley, 
Abstracts  oj  Wills. 

^  Matthews,  Cardiff  Records,  i,  p.  103,  a.  1542-43. 


ISO  BURGAGE  TENURE  IN  ENGLAND 

of  the  borough  and  the  Lord;  the  harvest  was  now  ripe  for  the 
Tudor  sickle,  the  church  had  sown,  the  nobles  and  the  gentry 
reaped;  the  political  Reformation  might  have  been  quite  dif- 
ferent had  the  church  not  lost  its  burgages. 

Accumulators,  however,  were  not  always  *  foreigners.'  Ouhtred 
of  Scarborough,  Dunning  of  Cambridge,'  Cannings  of  Bristol, 
kings  among  accumulators,  these  men  were  burgesses.  Long 
before  the  Reformation,  however,  the  knight  and  the  noble 
were  accumulators  too,  though  seldom  or  never  indwellers. 
The  records,  especially  those  in  the  Calendars  of  Patent  Rolls, 
show  that  all  through  the  middle  ages  burghal  realty  was  passing 
through  the  king's  hand ,2  usually  to  those  of  nobles  and  gentle- 
men. This  was  the  source  of  much  of  the  aristocratic  holdership 
and  accumulation  of  the  fourteenth  and  fifteenth  centuries. 
Accumulation  began  in  some  boroughs  in  the  thirteenth  and 
possibly  in  the  twelfth  century.  This  matter  has  been  ably 
and  inimitably  dealt  with  at  Cambridge,  where  its  development 
was  rather  precocious,'  there  being  about  twice  as  many  houses 
as  burgesses  when  the  Hundred  Rolls  were  compiled.  Early 
in  the  twelfth  century  the  number  of  burgesses  in  Winchester 
was  nearly  equal  to  the  number  of  houses.'' 

The  consequences  of  this  concentration  of  holdings  in  a  few 
hands  depended  during  the  greater  part  of  our  period  on  the 
relative  position  of  the  accumulator  upon  the  tenurial  ladder, 
for  there  might  be  many  holders  before  the  borough  lord  was 
reached.  To  a  less  extent  they  depended  on  whether  the  accumu- 
lator was  the  church,  a  non-inhabitant  aristocrat,  or  a  burgess. 
If,  for  instance,  in  any  one  of  these  three  cases  the  accumulator 
were  the  lowest  holder  of  several  burgages,  his  (or  its)  social 

'  See  Maitland,  Township  and  Borough,  p.  167,  c.  1219;  R.  11.,  ii,pp.  356  et  seq. 

'  See  Forfeiture,  p.  ^i. 

'  See  Maitland,  Township  and  Borough,  pp.  66,  69.  "  There  were  no  patrician 
land-owners  "  indwelling,  though  "  great  families "  outside  were  mesne  lords. 
"  Some  wealthy  burgesses  own  land  [in  the  fields];  others  own  none."  "  Often  a 
burgess  is  .  .  .  lowest  freeholder  of  3  or  4  houses." 

*  /). /i.,  iv,  Liber  Winton',  fT.  i-ii,a.  1 103-15.  Conditions  were  much  the  same 
as  they  had  been  T.  R.  E.  Each  burgess  had  commonly  one  '  mansion  '  or 
'  domus/  which  almost  always  paid  landgahle.  The  burgess  therefore  had  no 
lord  but  the  king.     This  excepts  the  bishop  of  Winchester's  tenements. 


MOBILITY  151 

and  economic  influence  would  be  great,  unless  his  leases  had 
long  terms  to  rim.^  If,  on  the  contrary,  the  lord  occupied  any 
other  place  in  the  tenurial  scale  than  that  of  lowest  holder  he 
had  no  influence  at  all;  he  was  merely  a  man  with  a  rent  charge. 
Toward  the  clergy,  and  especially  toward  the  regulars,  the 
burgesses  were  commonly  hostile.^  When  the  neighboring 
knight  or  noble  was  lowest  holder,  either  his  tenements  had  been 
granted  him  by  the  king  or  he  was  investing  surplus  wealth. 
He  was,  however,  not  always  on  hand  to  enforce  his  rights. 
On  the  other  hand,  to  the  burgess  accumulator  his  tenements 
were  his  capital,  though  not  necessarily  his  whole  capital,  much 
depending  on  the  amount  of  commerce  in  any  particular  borough ; 
in  addition  he  was  on  the  spot  to  look  after  his  investments.^ 
Though  the  church  was  a  great  holder  of  urban  realty  in  the 
mediaeval  period,  the  greatest  lowest  holders,  who  alone  might 
make  profit  of  the  burgages,  were  commonly  burgesses.  Toward 
the  close  of  the  middle  ages  the  freeholder  was  the  exception, 
the  lease  holder  or  termor  was  the  rule.*  In  the  early  modern 
period  the  church's  burghal  holdings,  like  most  clerically  owned 
realty,  passed  to  the  nobility  and  gentry,  and  noble  and 
gentle  ownership  became  more  and  more  common  as  the  political 
importance   of   the   borough    (not  of   the  burgesses,   however; 

^  His  political  influence  would  be  great  in  the  modern  period  when  it  was  an 
object  to  become  or  to  control  the  parliamentary  representative.  This  was  of 
small  importance  in  the  middle  ages. 

^  See  Charles  Gross,  "  Mortmain  in  Mediaeval  Boroughs,"  in  American  Historical 
Review,  July,  1907,  pp.  733-742.  This  hostility  was  both  personal  and  economic. 
Tenements  in  the  dead  hand  often  escaped  all  burghal  dues  and  imposts.  Seculars' 
tenements,  however,  were  held  in  the  usual  way,  and  the  seculars  themselves 
(priests  at  least)  were  often  excellent  citizens. 

^  Discussion  of  the  investment  of  capital  in  boroughs  by  patrician  land-owners 
who  took  their  interest  as  rent-charges,  or  who,  if  lowest  holders,  acted  as  landlords, 
would  lead  us  too  far  from  the  tenure.  The  extent  to  which  burghal  realty  might 
pass  into  the  hands  of  neighboring  land-owners  as  a  result  of  marriages  with  bur- 
gesses' heiresses  was  probably  small  during  the  mediaeval  period;  its  discussion 
also  is  outside  our  province. 

*  The  records  of  transfers  of  realty  in  the  boroughs  show  how  property  passed 
into  the  dead  hand.    See  Brand,  Newcastle,  pp.  208-219  et  pass.;  Bacon,  Annalls  of 
Ipswiche,  p.  53  et  pass.;    Swinden,  Yarmouth,  pp.  804,  815  et  pass.;    and  others. 
For  the  king  as  holder  (not  as  lord  of  the  borough)  see  the  Extracta  or  Estreats  - 
in  Rotulorum  Originalium  in  Curia  Scaccarii  Abbreviatio  (1805-10),  2  vols.  (R.  C). 


152  BURGAGE  TENURE  IN  ENGLAND 

barring  a  few  instances  they  were  only  pawns)  increased,  till 
very  modern  times.* 

In  short,  it  appears  that  tenurial  economic  conditions  in  the 
EngHsh  boroughs  of  the  later  middle  ages  were  not  very  different 
from  what  they  are  today,  except  that  they  were  likely  to  be 
much  more  complicated,'^  for  the  accumulator  was  obliged  to 
take  his  chance,  not  as  ultimate  lord  nor  as  chief  lord,  but  simply 
wherever  he  could  step  in,  the  lower  in  the  tenurial  scale  the 
better.^  Commonly  the  tenure  was  a  tangle;  and  it  is  easy  to 
see  how  this  tangle,  which  necessarily  caused  difficulty  in  tracing 
the  line  of  holders  of  any  particular  tenement,  must  eventually 
clarify  the  idea  of  ownership. 

The  most  important  topic  of  this  chapter  is  the  law  of  sale 
and  devise.  When  the  towns  of  free  or  restricted  sale  and 
devise  are  arranged  in  their  respective  groups,*  it  will  be  seen 
that,  while  the  boroughs  where  sale  was  limited  by  the  kin's 
preemption  outnumber  those  where  sale  was  free,  those  where 
devise  was  free  were  not  greatly  outnumbered  by  the  boroughs 
where  devise  was  unknown  or  limited  to  purchase.  In  addition, 
boroughs  of  free  devise  appear  among  those  of  restricted  sale, 
an  apparent  contradiction  due  to  later  change  in  the  burghal 
land  law.^  The  remark  of  an  eminent  scholar  that  "  there  were 
boroughs  perhaps  more  numerous  than  Professor  Maitland 
supposes  where  the  power  of  sale  continued  subject  to  limita- 
tions "  {i.e.,  kin's  retrait),^  is  abundantly  justified  by  the  evi- 
dence. In  Ireland  only  Dublin  and  its  four  followers  were  free 
from  retrait  lignager,  and,  though  the  immobility  of  the  other 
Irish  boroughs  was  due  to  their  foreign  customs,  even  London  in 

'  One  must  insert  '  landlordly  '  in  the  place  of '  noble  and  gentle  '  today. 

*  For  instance  the  bishop  of  Ely  held,  in  his  private  capacity,  many  tenements  in 
London;  for  some  he  was  lowest  holder,  the  lords  being  burgesses  and  one  of  them 
a  carpenter.     See  C.  I.  M.,  ii,  p.  478,  18  Ed.  I. 

*  When  one  became  a  mesne  lord  it  was  usually  by  accident.  Excepting  elimina- 
tion of  lower  lords  such  a  place  was  valueless. 

*  See  pp.  183-185. 

'  See  p.  184.     Altringham  and  Bridgnorth  appear  in  the  ranks  of  the  boroughs 
of  free  devise.     They  must  have  been  eleventh  hour  recruits,  the  latter  especially. 
'  Tait,  Mediaeval  Manchester,  p.  67. 


MOBILITY  153 

the  eleventh  century  showed  a  trace  of  the  old  Germanic  kin's 
retrait. 

Though  sale  in  need  and  other  legal  fictions  opened  a  gap  in 
the  wall  of  restriction,  the  common  usage  is  seen  in  the  reflection 
of  the  common  mind,  the  customary  land  law  of  the  borough. 
The  boroughs  of  East  Angha  and  the  southeastern  coast  seem 
most  consistent  in  this  respect,  especially  in  regard  to  devise. 
For  the  rest  of  the  boroughs  these  impediments  on  mobiHty, 
at  least  in  respect  to  sale,  practically  vanished  by  the  close  of 
the  middle  ages:  the  ice  of  restriction  had  been  thawed  by  the 
sun  of  commerce.^ 

^  This  was  not  necessarily  foreign  commerce;  Cambridge  for  instance  had  but 
little  of  that.  Perhaps  French  influence,  which  affected  the  Cinque  Ports  more  or 
less,  accoimts  for  their  backwardness  in  the  matter  of  mobility.  Yet  on  the  other 
hand  the  East  Anglian  tOAsois,  almost  as  conservative  as  the  Cinque  Ports,  traded 
much  with  Flemish  cities,  where  sale  of  realty  was  unhampered. 


CHAPTER   IV 

ACCOMPANIMENTS  AND   COMP.\RISONS 
The  Firma  Burgi 

The  fee-farm  rent,  commonly  called  by  the  mediaeval  burgess 
simply  the  farm  of  the  borough  or  Firma  Burgi,  means  the  lump 
sum  paid  annually  and  in  perpetuity  by  the  burgesses  to  the 
borough  lord  in  composition  for  the  profits  of  burgage  rents, 
courts,  markets,  mills,  tolls,  and  other  sources  of  ordinary  revenue 
which  the  lord  derived  from  the  borough.  As  a  rule  only  royal 
boroughs  had  this  privilege,  which  was  valued  highly  because 
it  excluded  the  king's  financial  officers.  A  gift  of  the  Firma 
Burgi  has  been  considered  by  some  to  have  exempted  the  bur- 
gesses from  paying  tallages,  possibly  because  the  annual  Firma 
Burgi  was  so  much  greater  than  the  annual  services  and  profits 
for  which  it  was  a  commutation;  it  did  nothing  of  the  sort. 
As  a  feature  of  burghal  freedom  it  has  been  sometimes  spoken 
of  as  if  it  conferred  or  carried  with  it  other  privileges,  such  as 
civic  governmental  and  tenurial  Uberty,  when,  the  final  step  of 
making  a  borough  a  county  excepted,  it  was  in  fact  the  last 
favor  which  a  borough  could  receive,  a  grant  of  the  farm  in  fee 
presupposing  the  possession  of  all  other  burghal  privileges,  cither 
as  gifts  by  charter  or  as  rights  by  custom  and  use. 

In  the  case  of  a  borough  created  by  charter  the  place  might 
have  been  granted  to  the  townsmen  in  fee-farm  at  the  time  it 
was  chartered.  As  far  as  our  evidence  shows  no  such  thing 
ever  occurred.'  The  burgesses  of  such  communities  needed  to 
adjust  themselves  to  their  new  conditions  before  they  were 
ready  to  decide  how  much  they  could  afford  to  pay  yearly  and 
forever,  or  indeed  whether  they  wished  to  pay  anything,  for  the 

'  At  Hridport  {C.  C.  K..  i,  p.  435,  a.  1253),  the  charter  stated  that  the  town 
"  shall  in  future  he  a  free  Ixirou^h,"  and  at  the  same  time  granted  the  farm  in  fee 
to  the  burgesses,  at  an  annual  increase  of  40s.     liridport  was  a  borough  l(;ng  before 

1253- 

154 


ACCOMPANIMENTS  AND  COMPARISONS  1 55 

privilege  of  excluding,  t^e  sheriff  in  his  ordinary  financial  capacity. 
A  grant  of  the  Firma  Burgi  in  fee  nearly  always  increased  the 
borough  rates  for  years  to  come,  while  the  lord  of  the  town  ^ 
was  commonly  sufficiently  far-sighted  not  to  discount  the  future 
except  at  high  interest.^  For  a  stationary  farming  borough  a 
grant  of  the  farm  might  be  too  great  a  burden:  such  towns 
seldom  asked  it.  The  older  and  important  boroughs  seldom 
rested  until  they  got  it.^ 

Lincoln  affords  an  early  instance  of  a  grant  of  the  farm  in 
fee;  in  1 130  its  citizens  paid  200  marks  of  silver  and  four  marks  of 
gold  to  keep  out  the  king's  financial  officials.*  Preston  is  said 
to  have  got  its  fee-farm  about  1173.^  In  31  Henry  II  the  bur- 
gesses of  Northampton  rendered  account  of  200  marks  "  for 
having  their  town  of  the  King  in  Capite."  ^  Northampton's 
farm  was  paid  to  the  sheriff  of  the  county,  and  by  him  to  the 
Exchequer,^  though  most  of  the  boroughs  with  this  privilege 
accounted  through  their  bailiffs  in  the  Exchequer.  Late  in 
Henry  II 's  reign  the  burgesses  of  Cambridge  paid  300  marks  of 
silver  and  one  of  gold  to  exclude  the  sheriff;  the  farm  was  not 
granted  in  fee  till  1207.^  Even  when  it  had  been  granted  in 
perpetuity,  the  Firma  Burgi  might  be  '  seized  into  the  king's 
hand  '  for  some  real  or  imaginary  offence.  On  such  occasions, 
however,  the  bailiffs  as  a  rule  still  performed  their  ordinary 
financial  duties,   the  royal  keeper   (custos)   merely  overseeing. 

1  In  practice  this  means  the  king's  financial  advisers. 

^  He  was  usually  willing  to  grant  the  farm  to  the  citizens  for  a  short  term  of 
years.  This  was  the  case  at  Cambridge  from  1 186  to  1 207.  See  Cooper,  Cambridge, 
i,  pp.  28,  33. 

^  At  first  sight  it  may  seem  as  if  some  boroughs  of  small  importance,  such  as 
Pontefract  (H.  M.  C,  Rep.,  8,  p.  269,  5  Rich.  I)  and  Farnham  (Hall,  Pipe  Roll 
of  the  Bishopric  of  Winchester,  p.  37,  a.  1208-09)  had  grants  of  the  Firma  Burgi; 
"  Quum  [praepositus]  pacaverit  domino  [of  Pontefract]  firmam  burgi  ad  festum 
sancti  Michaelis."  This  is  merely  the  farm,  not  a  fee-farm.  Every  territorial 
unit  in  England  had  its  farm. 

*  Stubbs,  Constitutional  History  of  England  (library  ed.,  Oxford,  1880),  i,  p.  468. 

*  Fishwick,  Preston,  p.  12. 

®  Markham  and  Cox,  Records  of  Northampton,  i,  p.  21.     This  means  only  the 
fee-farm  rent:  Northampton  was  always  a  royal  borough. 
^  Ibid.,  ii,  p.  209. 
8  Cooper,  Cambridge,  i,  pp.  28,  33. 


156  BURGAGE  TENURE  IN  ENGLAND 

The  suspension,  which  was  looked  on  as  temporary,  might  even 
be  a  financial  loss  to  the  Exchequer, 

Nottingham  seems  to  have  had  a  grant  of  the  farm  before 
1 160;  ^  Norwich  claimed  the  privilege  in  11 58  but  did  not  get 
it,  except  for  a  brief  time,  till  11 94  at  the  earliest.*  It  is  note- 
worthy that  the  boroughs  of  Ireland  which  were  earliest  farmed 
by  their  burgesses  were  Bristollian:  Dublin,  Limerick,^  and 
Cork.''  Newbury  was  at  fee-farm  in  1205,*  Kingston  in  1209,* 
Carlisle  in  1221,^  Derby  in  1229,®  Portsmouth  in  1229,*  Basing- 
stoke tempore  Henry  III, ^°  Canterbury  in  1234,"  Scarborough  in 
1 2 53, '2  Rochester  in  1265,*'  and  so  on  till  we  come  to  Woodstock, 
with  its  tiny  fee-farm  of  four  marks,  in  1453,"  ^^^  Plymouth,  an 
abbatial  borough,  in  1438.*^ 

There  were  boroughs  of  much  greater  importance  than  Wood- 
stock or  Plymouth  which  had  no  grant  of  the  farm  in  fee  at  any 
time  within  our  period.  Leicester  had  none  till  1589,^^  and  what 
it  got  then  was  rather  fitful.  Madox  could  find  no  trace  of 
Reading's  fee-farm  rent "  till  the  latter  half  of  the  sixteenth 
century.      Liverpool  illustrates  those  boroughs  which  had  an 

'  Stevenson,  Records  of  Nottingham,  \,  p.  3. 

*  Hudson  and  Tingey,  Records  0}  Norwich,  \,  pp.  x\n-xvii. 
'  Lenihan,  Limerick,  p.  47,  a.  1197. 

*  Caulfield,  Council  Book  of  the  Corporation  of  Cork,  p.  x.  Early  in  the  thir- 
teenth century. 

*  Money,  Newbury,  p.  66. 

'  Roots,  Charters  of  Kingston  upon  Thames,  p.  21.     It  may  have  been  at  fee- 
farm  temp.  Henry  H:  see  Plac.  Weslmon.  Abbr.,  p.  4. 
^  Ferguson,  Charters  of  Carlisle,  pp.  2,  3. 
»  C.  C.  R.,  i,  p.  96. 

*  East,  Portsmouth  Records,  p.  573. 

"'  R.  II.,  ii,  p.  220:   "  dominus  Heruicus  rex  .  .  .  tradidit  ad  feodi  firmam." 
"  Elton,  Tenures  of  Kent,  p.  160. 

"  C.C.R.,i,p.4i7- 

"  Charter  of  Rochester,  p.  4. 

"  Ballard,  Woodstock,  p.  17. 

"  H.  M.  C,  Rep.,  g,  pt.  i,  p.  272. 

'•  Batcson,  Records  of  Leicester,  iii,  p.  xix. 

"  Reading  had  a  grant  of  the  Eirma  Burgi  (see  Guilding,  Reading  Records,  ii, 
p.  52)  but  the  date  of  the  grant  is  unknown.  Reading  was  an  ancient  borough,  at 
first  abbatial,  which  may  account  for  the  poor  cjuality  of  its  early  records;  later 
it  was  royal.  The  abbot  nominated  the  master  of  the  Gild  Merchant,  which  finally 
became  the  cor{K)ration  and  its  master  the  mayor. 


ACCOMPANIMENTS  AND  COMPARISONS  1 57 

intermittent  farm;  it  was  granted  the  privilege  for  varying 
periods  at  varying  intervals/  till  finally  it,  like  most  other 
boroughs,  bought  out  its  lord.  A  few  places  still  pay  a  fee-farm 
rent,  sometimes  to  private  persons  to  whose  ancestors  or  legators 
the  rent  was  granted  by  the  crown. ^ 

It  is  plain  that  a  grant  of  the  farm  in  fee  was  a  comparatively 
late  feature  of  burghal  development.  Burgage  tenure  would 
have  been  exactly  what  it  was  though  not  one  city  or  town  in 
England  had  excluded  the  sheriff  by  marks  of  silver  and  marks 
of  gold.  Valuable  as  was  a  grant  of  farm  in  fee  as  a  means  of 
maintaining  personal  Hberty  and  burghal  autonomy,  it  was  no 
distinguishing  mark  of  a  borough;  there  were  boroughs  with 
it  and  boroughs  without.  Burgage  tenure,  on  the  other  hand, 
was  such  a  mark,  for  every  borough  must  have  it,  and  it  could 
not  exist  outside  a  borough.^ 

^  See  Baines,  Liverpool,  pp.  94,  160.  In  13  Henry  II  it  had  a  grant  of  the  farm 
for  four  years  for  £10,  in  1354  for  ten  years  for  50  marks,  and  so  on  till  temp.  Car.  II, 
when  the  town  bought  out  its  lord. 

A  few  places  were  held  by  their  burgesses  in  fee  though  they  could  show  no 
evidence  of  any  grant.  Probably  they  had  once  made  what  at  the  time  were  sup- 
posed to  be  temporary  arrangements  with  their  lords,  which  were  continued  from 
year  to  year  till  they  became  customary.  Such  boroughs  were  usually  baronial; 
barons'  records  were  not  so  thorough  as  the  king's.  A  change  of  lords  might  bring 
trouble  in  such  a  case  (see  Atcheson,  Case  of  the  Borough  of  Peters  field,  pp.  13-15), 
but  probably  in  many  baronial  boroughs  the  custom  was  never  infringed. 

^  This  was  the  case  at  Chester  (in  1835)  which  paid  its  rent  to  the  Marquis  of 
Westminster,  who  had  bought  it  from  the  crown  {Parliamentary  Papers,  1835, 
xxvi,  p.  2628).  In  1887  the  Firma  Burgi  at  Doncaster,  which  was  alienated  cen- 
turies ago  by  the  crown,  and  toward  which  went  a  few  chief  rents,  was  still  being 
paid  to  a  private  person  (Tomlinson,  Doncaster,  p.  33,  note  q,  and  p.  27,  note  h). 
The  Treasury  still  receives  the  fee-farm  rent  from  Grimsby  (H.  M.  C,  Rep.,  14, 
pt.  8,  p.  242,  a.  1895). 

'  See  Coke,  Commentary  upon  Littleton,  sec.  nob  et  pass.  See  also  Elton, 
Tenures  of  Kent,  pp.  152-178.  The  prior  of  Merton  had  held  a  messuage  in  South- 
wark.  Borough  and  tenement  came  separately  into  Henry  VIII's  hand;  he 
granted  the  tenement  along  with  lands  in  Essex,  all  to  be  held  in  free  burgage. 
The  tenant  died  intestate  and  his  property  was  the  subject  of  a  plea,  during  the 
process  of  which  the  court  held  that  lands  outside  a  borough  could  not  be  held  in 
biirgage,  and  if  so  granted  must  be  held  in  socage.  See  also  C.  I.  M.,  Henry  VII, 
i,  p.  282,  7  Henry  VII:  "Two  burgages  in  Hatherlegh,  worth  2d.,  held  ...  in 
free  socage." 

Representation  in  Parliament  was,  like  a  grant  of  the  Firma  Burgi,  a  burghd 
privilege  and  not  a  test  or  mark  of  a  borough.  In  some  boroughs,  as  Hereford  and 
Carlisle,  the  limits  of  the  parliamentary  and  borough  franchises  were  not  coincident. 


158  BURGAGE  TENURE  IN  ENGLAND 

Burgage  Tenure  in  Domesday 

Though  few  of  the  records  and  sources,  from  which  our  con- 
clusions so  far  have  been  drawn,  reach  to  within  half  a  century 
of  the  Conquest,  it  does  not  follow  that  burgage  tenure  is  of 
post-Conquest  origin.  As  Maitland  puts  it,  when  the  age  of 
charters  began  it  found  a  tenure  established  in  the  boroughs. 
The  earliest  charters  are  usually  very  brief ;  they  merely  confirm 
the  customs  of  a  borough  without  stating  what  these  were. 
Then  from  a  few  charters  making  new  boroughs  of  vills  we 
learn  some  of  the  customs  of  the  old.  At  a  later  period,  in  most 
cases,  these  customs  began  to  be  codified,  often  because  some 
new  borough,  in  adopting  a  customal,  was  careful  that  there 
should  be  no  question  as  to  what  its  laws  really  were.*  How 
old  are  these  customs,  especially  those  which  relate  to  tenure 
in  the  boroughs  ?  Domesday  is  an  ancient  record;  it  bears 
witness  to  many  economic  and  legal  features  in  King  Edward's 
day  and  in  King  William's.  What  does  it  tell  us  concerning 
conditions  of  land-holding  in  the  boroughs  ?  Not  so  much  as 
one  could  wish,  as  far  as  individual  boroughs  are  concerned.^ 
Domesday  is  a  '  geld-book,'  an  eclectic  geld-book  at  that;  it 
has  an  eye  single  to  taxation.  Unless  tenurial  customs  were 
revenue-producing,  they  got  scant  attention  or  none.  Yet 
from  various  items,  here  a  little  and  there  a  Httle,  some  knowledge 
of  burgage  tenure  in  the  Domesday  era  can  be  gained. 

As  to  borough  customs  in  general  there  seems  to  have  been  no 
change  from  Edward's  day  to  William's.  This  is  sometimes 
distinctly   stated,   as  at  Dover,''  Wallingford,*  and  Hereford.^ 

'  F"or  instance  the  burgesses  of  Hereford  gathered  together  their  customs 
for  the  new  burgesses  of  Haverfordwest,  and  charged  the  latter  £5  for  their 
services. 

*  Except  in  a  few  boroughs,  as  Chester  and  York.     See  D.  B.,  i,  ff.  262b,  298a. 
'  D.  B.,  i,  f.  la:    "  omnes  hae  consuetudines  erant  ibi  quando  rex  VVillelmus 

in  .\ngliam  vcnit."      In  this  and  the  following  quotations  the  '  customs  '  may 
refer  to  both  legal  and  financial  customs. 

*  Ibid.,  i,  f.  56a:  "  Modo  sunt  in  ij>so  burgo  consuetudines  omnes  ut  ante 
fuerunt." 

*  Ibid.,  i,  f.  179a:  "  Modo  habet  rex  civitatem  ...  in  dominio  et  anglici 
burgenses  .  .  .  habcnt  suas  priores  consuetudines." 


ACCOMPANIMENTS  AND  COMPARISONS  1 59 

King  Henry's  part  of  Liber  Winton'  (i  103-15),  an  appendix 
as  it  were  to  Domesday,  corroborates  the  evidence  of  the  latter, 
especially  in  the  matter  of  the  burgage  rent  or  landgable.^  The 
method  of  compilation  of  Liber  Winton'  confirms  Maitland's 
suggestion  that  in  many  of  the  items  concerning  boroughs  in 
Domesday  the  landgable  was  often  contained  in  the  financial 
customs. 2  The  only  alternative  to  his  opinion  is  that  in  many 
boroughs  the  bulk,  or  sometimes  all,  of  the  messuages  paid  no 
rent  or  gable  whatever.^ 

This  gable,  or  more  commonly  landgable,  was  naturally  a  very 
important  burghal  feature  to  the  compilers  of  King  William's 
great  rate-book;  it  ranked  with  other  sources  of  revenue,  such 
as  profits  of  pleas,  markets,  and  tolls.  The  landgable  is  some- 
times given  as  a  lump  sum,  sometimes  what  each  tenement  must 
pay;  at  times  the  name  appears  without  the  amount.^  In  such 
cases  the  occupying  burgesses  are  often  charged  with  it,  as  at 
Canterbury,^  where,  however,  other  dues  than  the  landgable 
seem  to  have  been  included  in  the  return.^  Gable  T.  R.  W. 
differed  but  little  from  gable  T.  R.  E.,^  except  where  revolt 

^  It  abounds  in  such  items  as:  "  Domus  .  .  .  reddebat  xv  d.  de  langabulo  et 
omnes  consuetudines  tempore  R.  E.  Modo  G.  tenet  eam  et  facit  consuetudines 
similares  "  {D.  B.,  iv,  Liber  Winton',  f.  8).  For  other  entries  of  the  same  sort 
see  ff.  8,  8b,  11,  iib,  etc.     The  '  customs  '  are  not  legal  but  financial. 

2  This  record  follows  the  plan  of  the  Winchester  streets,  and  at  first  the  landgable 
is  separately  given  for  each  house.  Then  the  jurors,  or  the  clerks,  or  probably 
both,  got  tired  or  impatient;  the  entries  start  at  the  end  of  a  street  in  due  form, 
'  langabulum  et  alias  consuetudines,'  but  soon  '  omnes  consuet.'  creeps  in  and 
the  totals  go  up;   the  landgable  in  such  cases  is  certainly  included. 

'  In  nearly  every  borough  a  varying  number  of  messuages  paid  no  landgable. 
Possibly  some  never  paid  any. 

*  '  Hawgable  '  is  not  used  in  Domesday  or  Liber  Winton'. 

^  D.  B.,  i,  f.  2a:  "  In  civitate  Cantuaria  habuit  rex  Edwardus  I  et  i  burgenses 
reddentes  gablum." 

^  Ibid.,  i,  f.  2a:  "  Radulfus  tenet  alias  xi  masuras  de  episcopo  in  ipsa  civitate 
[Canterbury]  .  .  .  et  reddit  xi  s.  ii  d.  i  obolum."  This  seems  much  too  high  for 
landgable  alone.  It  was  about  6d.  for  the  average  messuage  in  Winchester,  and 
that  was  high. 

'  As  at  Pevensey  {ibid.,  i,  f.  20b)  where  "  T.  R.  E.  fuerunt  xxiiii  burgenses  in 
dominio  regis  et  reddebant  de  gablo  xiiii  s.  vi  d.  .  .  .  Modo  habet  ipse  [Count  of 
Mortain]  in  dominio  Ix  burgenses  reddentes  xxxix  s.  de  gablo."  The  gable  in  each 
period  averaged  a  Uttle  over  yd.  for  each  masura. 


l6o  BURGAGE  TENURE  IN  ENGLAND 

or  fortification  had  entailed  waste,*  and  in  nearly  all  these  records 
it  varied  for  each  house.^ 

Perhaps  5d.  or  6d.  would  not  be  far  from  the  average  land- 
gable  in  the  boroughs  of  southern  England.  Except  in  Win- 
chester, however,  very  few  messuages  paid  this  amount.  Most 
of  the  individual  landgables  were  much  lower;  a  few  very  much 
higher,'  though  there  was  occasionally  an  apparent  exception,* 
due  probably  to  intrusion  by  mesne  lords.  At  times  toll  and 
gable  were  given  as  a  lump  sum.*  In  the  Confessor's  day  Oxford, 
hke  London,  seems  to  have  been  at  farm,  but  probably  not  fee- 
farm.'  At  Huntingdon '  and  Northampton  ^  the  rents  were 
about  the  same  as  in  the  boroughs  previously  instanced,  both 
in  amount  and  variability.  At  the  latter  town  there  was  appar- 
ently no  difference  in  this  respect  between  the  French  and  the 
English  borough.  Nottingham's  landgable  was  of  like  sort.® 
With  Hereford  there  appears  another  fashion  as  regards  the  bur- 

'  D.  B.,  i,  f.  56a.  "  In  burgo  de  Walingford  habuit  rex  Edwardus  viii  virgatas 
terrae  et  in  his  erant  ccbcxvi  hagae  reddentes  xi  libri  de  gablo.  .  .  .  Modo  sunt  in 
ipso  burgo  consuetudines  omnes  ut  ante  fuerunt,  sod  de  hagis  sunt  xiii  minus, 
pro  castello  sunt  viii  destructae."  A  few  haws  might  be  destroyed,  but  "  de  super 
plus  sunt  xxii  masurae  francigenae  reddentes  vi  s.  v  d.,"  an  average  of  3Jd.  for  each. 

2  As  at  Pevensey  {D.  B.,  i,  f.  20b)  where  there  were  rents  of  2od.  each,  lad.  each, 
5  of  2s.  for  all,  and  so  on.  At  Wallingford  {D.  B.,  i,  f.  56a)  22  masurae  paid  6s.  sd. 
for  all,  20  masurae  paid  12s.  lod.  for  all;  27  haws  paid  25s.  for  all,  6  haws  paid  44d. 
for  all;  there  were  several  messuages  at  4d.  each,  2d.  each,  and  so  on. 

'  6d.  was  the  average  rent  at  Taunton  T.  R.  E.  "  Ibi  bciiii  burgenses  reddentes 
xxxii  s."    {D.  B.,  i,  f.  87b). 

*  See  D.  B.,  i,  f.  143a.  At  Buckingham  T.  R.  W.  one  burgess  paid  2S.  2d.  to  Earl 
Hugh  and  sd.  to  the  king,  another  2S.  to  Emulf  de  Hesding  and  3d.  to  the  king, 
another  2s.  4d.  to  Hugh  de  Bolcbec  and  2d.  to  the  king,  and  4  burgesses  paid  2s.  $d. 
to  Manno  Hrito  alone.     The  lower  sums  were  probably  the  landgables  proper. 

'  Ibid.,  i,  f.  26a.  "  Burgus  de  Lewes  T.  R.  E.  reddebat  vi  libras  et  iiii  sol.  et 
iii  obolos  de  gablo  et  de  theloneo  ";   there  were  127  burgesses. 

*  Sec  ibid.,  i,  f.  154a.  The  city  paid  £20  and  some  honey  for  all  customs. 
T.  R.  W.  10  mansiones  paid  3s:  "  Omnes  sunt  vastae  praeter  unam."  7  messuages 
paid  ss.  8d.,  4  paid  is.  sd.,  etc.  T.  R.  E.  mural  '  mansiones  '  were  free  of  custom, 
"  excepta  e.xpeditione  et  muri  reparatione." 

^  Ibid.,  i,  f.  203a.  20  '  mansiones,'  which  had  been  destroyed  to  make  way 
for  the  castle,  had  rendered  i6s.  8d.  for  all  customs,  an  average  of  lod. 

*  Ibid.,  i,  f.  2iQa.  23  houses  rendered  29s.  4d.,  2  rendered  i6d.  each,  i  paid  4d., 
12  paid  3s.  for  all,  4  paid  4s.  for  all,  etc. 

'  Ibid.,  i,  f.  280a.      II  domus  for  4s.  7d.,  48  for  36s.,  etc. 


ACCOMPANIMENTS  AND  COMPARISONS  l6l 

gage  rents;  they  were  uniform  in  their  incidence  and  somewhat 
higher  than  in  the  rest  of  the  Domesday  boroughs.^  Shrews- 
bury may  have  had  a  landgable  of  hke  sort.^  At  York  the  land- 
gable  was  so  low  as  to  be  practically  uniform  for  each  messuage,^ 
but  this  uniformity  had  nothing  in  common  with  the  uniformity 
at  Hereford.  At  Lincoln  *  and  Norwich  ^  as  well  as  York  this 
low  and  virtually  uniform  landgable  was  the  same  in  the  Con- 
fessor's day  as  in  the  later  middle  ages.^ 

Cambridge  shows  exactly  the  same  conditions  in  respect  to 
the  landgable  during  and  before  the  Domesday  era  as  centuries 
later.  In  Edward's  reign  and  in  WilHam's  there  were  messuages 
which  paid  none.''  The  gable  and  the  financial  customs  were 
separated  at  Cambridge.  The  amounts,  which  were  the  same 
T.  R.  E.  and  T.  R.  W.,  were  nearly  equal;  if  the  same  proportion 
held  in  other  boroughs  this  may  show  that  the  gable  was  about 
half  '  of  all  customs.'  *  The  landgable  was  £7  two  orae  2d. 
This  is  the  '  high  gable  '  rental,  which  in  1483  was  £7  2s.  fd., 
and  which,  for  Cambridge  at  least,  affords  complete  proof  for 
the  age  and  incidence  of  the  burgage  rents. 

Domesday  knows  the  burgess  well.  It  does  not  know  the 
burgage  under  that  name;  the  common  expression  is  masura 
or  mansura,  sometimes  domus,  sometimes  mansio.      All  these 

1  D.  B.,  i,  f.  179a.  Within  the  walls  each  "  integra  masura  reddebat "  7|d., 
probably  the  gable,  together  with  4d.  for  hiring  horses,  and  a  few  other  trifles,  the 
sum  of  all  these  services  being  so  close  to  1 2d.  that  this  is  probably  the  reason  why 
Hereford  is  supposed  to  have  been  among  the  later  shilling  boroughs.  Masuras 
without  the  walls  paid  only  3^d.  each. 

^  Ibid.,  i,  f.  252a.  There  were  252  burgenses  and  252  domus;  the  total  amount 
*  de  gablo  '  was  £7  i6s.  8d.,  an  average  of  a  little  over  yd.  Nothing,  however,  is 
said  of  horse-hire  or  other  incidental  services. 

^  Ibid.,  i,  f.  298a.  "  cccc  mansiones  .  .  .  reddunt  meliores  i  d.  et  aliae  minus." 
York  is  the  largest  borough  which  has  a  place  in  Domesday. 

*  Ibid.,  i,  f.  336a.  "  T.  .  .  .  habuit  in  civitate  xxx  mansiones  .  .  .  de  una 
quaque  unum  denarium,  idest  langabulum." 

^  Ibid.,  ii,  p.  iiSa.     The  landgable  is  apparently  id.  for  each  messuage. 

^  See  also  Yarmouth,  D.B.,  ii,  p.  11 8a. 

'  Ibid.,  i,  f.  189a.  Alan  the  earl  had  "  v  burgenses  nichil  reddentes."  The 
Count  of  Mortain  "  habet  iii  masuras  et  ibi  sunt  iii  burgenses  qui  T.  R.  E.  redde- 
bant  V  s.  viii  d.  i  obolum,  modo  nichil  reddunt." 

*  The  common  Domesday  phrase  is  '  omnium  consuetudinum.'  The  customs 
at  Cambridge  were  £7  (Z).  B.,  i,  f.  189a). 


1 62  BURGAGE  TENURE  IN  ENGLAND 

terms  meant  the  same.  Mansio  seems  to  have  been  the  favorite 
in  the  north,  as  at  York  and  Lincoln.*  At  times  burgensis  is 
used  in  exactly  the  same  sense  as  masura  or  domus,  as  at  Leices- 
ter,'^ Stafford,^  and  Hertford;*  each  may  owe  the  gable.  A 
burgess  might  be  even  a  fraction  of  a  house  or  a  house  a  fraction 
of  a  burgess,  as  at  Huntingdon.^  Not  even  a  Domesday  scribe 
was  likely  to  mistake  a  burgess  for  a  messuage.  It  seems  there- 
fore where  the  terms  burgensis  and  masura  are  used  interchange- 
ably, as  they  were  in  many  boroughs,  that  the  rule  was  one 
burgess,  one  tenement.*  In  some  towns,  however,  there  were 
more  houses  than  burgesses;  and  in  many  there  is  no  statement 
as  to  comparative  numbers.  These  instances  and  illustrations 
make  it  plain  that  the  '  burgage  tenement '  with  its  *  burgage 
rent  '  existed  in  King  Edward's  day  and  probably  long  before  it.'' 
We  have  the  low  fixed  rent  called,  before  and  long  after  the  Con- 
quest, the  gable  or  landgable,  and  Domesday  shows  clearly 
that  the  lands  in  the  boroughs  were  held,  not  by  leases  nor  in 
base  tenure,  but  by  this  fixed  heritable  *  money-rent,  and  seldom 
by  any  additional  service:  this  is  burgage  tenure.^  The  case 
for  the  landgable  may  be  closed.  It  has  surely  proved  its  claim 
of  ancient  uninterrupted  descent. 

Domesday  has  little  to  say  of  other  matters  touching  the  tenure, 
for  they  were  seldom  of  financial  importance.  At  times  the 
scribes,  apparently  in  idle  moments,  do  note  down  parts  of  bor- 

*  At  Notlingham  (see  D.  B.,  i,  f.  280a)  the  mansio  may  have  been  a  large  holding 
containing  smaller  sub-holdings,  "  iii  mansioncs  in  quibus  sedent  xi  domus  ": 
elsewhere  mansio  is  the  same  as  masura.     Terra  occurs  in  Liber  Winton'. 

*  D.  B.,  i,  f.  230a:   '  burgensis  pcrtinet '  or  '  domus  pertinet.' 

*  Ibid.,  i,  f.  246a,  burgensis  =  mansio. 

*  Ibid.,  i,  f.  132a:  "  Ibi  erant  cxlvi  burgenscs  in  soca  regis  Eduuardi.  De  his 
habet  modo  comes  Alanus  iii  domos." 

'  Ibid.,  i,  f.  203a:   "  sunt  cxl  burgcnses  dimidio  domus  minus." 

'  See  ibid.,  i,  f.  219a,  etc.:  "  T.  R.  K.  fuerunt  in  Northantonc  in  dominie 
regis  Ix  burgcnses  habentcs  totidem  mansiones." 

^  .\s  '  l)urgagium  '  is  not  used  in  Domesday  there  is  no  place  for  '  burgage 
rent  ';  this  term  is  virtually  unknown  in  the  older  boroughs  all  through  the  middle 
ages. 

'  Relief  is  not  paid  except  for  inheritance.  It  is  found  in  some  of  the  compara- 
tively less  free  Domesday  boroughs. 

*  Sec  F.  W.  Maitland,  Domesday  Book  and  Beyond  (Cambridge,  1897),  pp.  198- 
199.     There  was  even  something  like  the  fee-farm  rent  at  London  and  Oxford. 


ACCOMPANIMENTS  AND  COMPARISONS  1 63 

ough  customs,  as  those  of  Dover  and  Chester/  while  the  detailed 
Newcastle  customal  dates  from  Henry  I's  reign.^  Such  customs 
do  not  grow  up  in  a  night,  unless  it  be  the  night  of  history. 
Were  the  older  urban  communities  ever  affected  by  the  feudal 
incidents  ?  By  only  those  apparently  which  had  Saxon  proto- 
t>Tpes,  as  relief  for  heriot,  and  even  heriot  existed  in  by  no  means 
all  the  boroughs.  Do  freedom  of  sale  and  devise  antedate  the 
Conquest  ?  They  certainly  do  for  bookland;  they  certainly 
did  not  come  with  the  Normans.^ 

The  conviction  which  is  borne  in  by  a  survey  of  tenurial 
burghal  institutions  in  the  Domesday  era  is,  that  when  the 
country  at  large  was  passing  under  the  yoke  of  feudalism,  the 
boroughs  retained  and  later  developed  their  tenurial  liberties; 
that  this  development,  fostered  in  many  towns  by  the  com- 
mercial spirit,  had  reached  a  stage  in  the  eleventh  century  of 
sufficient  strength  to  save  the  boroughs  from  the  feudalization 
which  was  then  overspreading  the  land,  the  predominance 
of  which  was  hastened  and  assured  by  the  incoming  of  the 
Normans.  But  that  conditions  of  land  transfer  in  the  pre- 
Conquest  boroughs  had  attained  or  even  approximated  the  degree 
of  freedom  which  is  found  in  such  a  place  as  Cambridge  in  the 
twelfth  and  thirteenth  centuries  is  quite  improbable,  for  there 
was  no  demand  for  such  freedom. 

Sale  there  was  at  times  however.  At  Hereford  Peter  of 
Valongies  (Valognes)  had  bought  houses  from  Ulwi  of  Hatfield, 
who  was  free  to  assign  or  sell  them.^  All  the  houses  in  Hereford 
were  alienable,  but  not  freely  alienable;  sale  must  have  the 
consent  of  the  praepositus.^  Sale  lay  under  no  restriction  at 
Torskey,^  and  at  Lincoln  was  hampered  only  by  the  kin's  retrait.'' 

^  See  D.B.,\,Q.  la  and  262b.  ^  See  Stubbs,  5e/ec/  Charters, -p^.  110-112. 

'  For  survival  of  this  term  see  Elton,  Tenures  of  Kent,  p.  161.  The  '  bookland  ' 
of  Alfred's  law  (cap.  41)  seems  to  be  exactly  the  same  as  the  '  land  of  purchase  ' 
of  the  twelfth  and  later  centuries. 

*  D.  B.,  i,  f.  132a. 

^  Ibid.,  i,  f.  179a.     The  third  penny  was  due  him  as  well. 

*  Ibid.,  i,  f.  337a:  "  quicunque  eorum  mansionem  in  eadem  villa  habebat  neque 
intrans  neque  exiens  theloneum  dabat."  Probably  the  reference  is  to  '  Outpenny 
and  Inpenny  '  and  not  to  market  tolls. 

^  Ibid.,  i,  f .  336a.     This  could  be  evaded  with  the  king's  consent. 


164  BURGAGE  TENURE  IN  ENGLAND 

At  Chester  delay  in  the  payment  of  the  landgable  entailed  an 
amend  of  los.;  default  cost  a  burgess  his  tenement.^  At 
Gloucester  nearly  half  the  tenements  seem  to  have  changed 
holders  through  sale  in  the  days  of  William  the  Red.'^ 

Heriot  and  relief  seem  to  have  been  most  common  on  the 
Welsh  border;  the  former  was  an  incident  at  garrison  towns 
such  as  Hereford '  and  Shrewsbury ,'•  the  latter  at  Chester.* 
Elsewhere  relief  and  heriot,  when  they  existed  at  all,*  seem  to 
have  been  paid  by  a  small  and  perhaps  aristocratic  number  of 
burgessesJ  The  heriot  was  that  of  the  law  of  King  Canute. 
In  the  Confessor's  reign  marriage  is  found  at  Shrewsbury  only.* 
Forfeiture,  in  Dover  at  least,  was  peculiar;  only  half  a  felon's 
tenement  was  taken  by  the  king.'  That  this  was  the  common 
burghal  practice  is  unlikely ;  both  before  and  after  the  Conquest  he 
who  forfeits,  forfeits  all.'"  In  both  Edward's  day  and  William's, 
especially  at  such  boroughs  as  Canterbury  and  Dover,  there  was 
aristocratic  holdership,  some  of  which  seems  to  have  been  mesne, 

*  D.  B.,  i,  f.  262b.  The  rule  in  nearly  all  the  boroughs.  Until  the  borough 
obtained  a  grant  of  the  farm  in  fee  the  lord  got  such  a  tenement.  At  Hereford 
{ibid.,  i,  f.  179a)  the  praepositus  must  get  another  and  solvent  tenant,  as  at  Uttox- 
eter  in  the  thirteenth  century  and  at  Agardsley  in  the  fifteenth. 

*  Cole,  Rental  of  ike  Houses  in  Gloucester,  p.  xiv  (return  of  the  landgavel,  a.  1096- 
iioi).  There  were  200  burgesses  in  the  king's  demesne,  97  dwelling  on  their 
own  inheritance  and  97  in  houses  which  they  had  bought. 

'  D.  B.,  i,  f.  179a.  At  the  death  of  a  burgess  who  had  served  as  a  horseman  the 
king  took  both  horse  and  arms;  if  as  a  foot-soldier,  the  heriot  was  commuted  for  los. 

*  Ibid.,  i,  f.  252a.  At  the  death  of  a  burgess  "  in  dominio  regis  "  the  king  took 
IDS.     This  is  called  relief;  it  seems  to  have  been  a  commutation  for  heriot. 

*  Ibid.,  i,  f.  262b:  "  Qui  tcrram  suam  vel  propinqui  sui  relevare  volebat  x  s. 
dabat." 

*  Which  is  not  the  rule.  At  York  {D.  B.,  i,  f.  298b)  "  burgcnses  .  .  .  non  dant 
relevationcm." 

'  .\s  at  Cambridge  [D.  B.,  i,  f.  189a)  where  Picot  the  sheriff  had  £8,  a  palfrey, 
"  et  unius  militis  arma,"  "  de  harieta  Lagemannorum."  This  is  a  combination 
of  both  incidents. 

*  D.  B.,  i,  f.  252a:  "  Mulier  accipiens  quocunque  modo  maritum  si  vidua  erat 
dabat  regi  xx  s.  si  puella  x  s." 

'  Ibid.,'\,  f.  la:  "  Dcilla  masura  quam  tenet  Rannulfus  .  .  .  quae  fuit  cujusdam 
exulis  ['  ullage  '  is  ovcrwriltcnl  .  .  .  dimidia  terra  est  regis."  What  happened 
to  the  other  half  ? 

^^  In  Alfred's  law,  cap.  20,  there  is  forfeiture  of  half  to  the  king,  but  it  was  merely 
half  the  '  wer  '  and  then  only  when  the  slain  man  was  kinless. 


ACCOMPANIMENTS  AND  COMPARISONS  1 65 

and  practically  none  lowest.  Aristocratic  holdings  seem  rela- 
tively smaller  in  the  Norman  than  in  any  other  period,  for  so 
many  towns  passed  into  the  royal  demesne  and  so  many  terri- 
torial lords  lost  their  possessions,  that  the  king  became  lord  of 
all  the  important  boroughs,  and  of  a  large  majority  of  the  mes- 
suages therein. 

Of  all  the  burghal  features  here  treated,  commonest,  clearest, 
and  of  Uneage  unbroken  from  the  earliest  period,  is  the  landgable, 
whose  difference  in  character,  though  not  in  kind,  causes  the 
older  boroughs  to  fall  into  two  general  classes:  one  where  the 
landgable  was  about  the  same  for  each  tenement;  the  other 
where  wide  variations  occur.  The  gable  is  low  in  both  classes; 
and  there  were  rents  of  a  shilHng,  but  no  shilling  boroughs. 
In  the  first  class  come  most  of  the  boroughs  of  the  Danelaw, 
with  the  older  boroughs  of  the  shires,  as  far  as  we  know  them; 
even  London  seems  to  belong  to  this  class.  That  is,  the  bulk  of 
the  boroughs  held  by  the  Danes  and  those  which  were  founded 
to  resist  them,  or  fortified  against  them  where  already  existing, 
were  tenurially  of  the  same  order. ^  In  the  second  class  came 
such  a  town  as  Cambridge  ^  where  the  average  '  high  gable  ' 
of  id.  or  2d.  is  found  side  by  side  with  rents  of  3s.  or  4s.  all 
through  the  middle  ages.^ 

The  most  reasonable  explanation  for  this  inequality  seems  to 
he  in  accumulation  of  masuras,  the  rents,  which  were  possibly 
unequal  from  the  first,  accumulating  with  them.  By  subsequent 
divisions  of  land  but  not  of  rents,  several  masuras  would  become 
free  from  payment  of  gable,*  while  others  paid  a  rent  out  of  pro- 
portion to  their  size;  such  messuages,  however,  would  be  com- 
paratively few.  This  is  exactly  the  condition  which  was  prevalent 
at  Cambridge  and  elsewhere,^  and  which  might  have  obtained, 

^  Anyone  not  delirious  with  Roman  fever  knows  that  the  London  of  continuous 
history  dates  from  the  period  of  the  Danish  wars. 

^  I  have  taken  Cambridge  as  an  illustration  intentionally  and  as  the  main  excep- 
ion  to  the  rule  in  the  Danelaw. 

^  Domesday  for  the  eleventh  century;  Rotuli  Hundredorum  for  the  thirteenth 
century;   Cooper,  Cambridge,  for  the  fifteenth. 

*  Possibly  there  were  tenements  which  had  never  paid  gable. 

^  As  at  Oxford.  At  Cambridge  the  exceeding  fluidity  of  realty  exaggerated  the 
inequalities  of  the  landgable. 


1 66  BURGAGE  TENURE  IN  ENGLAND 

and  did  obtain  to  some  small  extent,  in  the  boroughs  of  our 
first  class,  had  not  their  later  foundation  or  development,' 
together  with  the  desire  to  induce  settlement,  caused  the  adoption 
of  a  perhaps  symbolic  rent  so  low  as  to  be  practically  uniform, 
the  customary  penny  hawgable.'^  It  is  unUkely  that  Henry  de 
Lacy  ever  heard  of  the  Alderman  of  Mercia,  but  the  causes  which 
induced  him,  when  founding  Denbigh,  to  replace  the  usual  shilling 
rent  of  the  created  baronial  borough  with  the  penny  landgable 
of  Lincoln  may  have  been  in  part  the  same  as  those  which  in- 
fluenced Alfred's  son-in-law  when  making  strongholds  in  the 
Midlands. 

English  Burgage  Tenure  and  the  Laws  of  Breteuil 

While  the  tenure  in  the  older  boroughs  of  England  is  plainly 
an  institution  of  native  growth,  there  was  a  group,  or  rather 
there  were  several  groups,  of  towns  where  the  conditions  of 
land-holding  bore  the  marks  of  a  greater  or  lesser  amount  of 
foreign  influence.  This  outside  influence,  with  the  boroughs 
in  which  it  is  (or  is  supposed  to  be)  found,  has  been  made  the 
subject  of  what  may  be  thought  rather  unnecessarily  detailed 
treatment,  the  lack  of  consequence  and  small  effectiveness  of 
these  boroughs  being  considered,  under  the  title  "  The  Laws  of 
Breteuil."  ' 

Breteuil  was  a  Norman  ville  of  no  particular  importance, 
whose  innocent  young  life  came  to  a  sudden  and  violent  close, 

'  York,  Lincoln,  etc.,  and  even  London  were  wasted  by  the  Danes  and  had 
virtually  to  start  anew. 

-  There  has  been  suggested  another  exi)lanati()n  for  low  and  variable  rents  whose 
only  defect  is  that  it  does  not  explain;  this  is  that  some  lord  of  a  manor  made  a 
borough  piecemeal.  In  the  latter  middle  ages  there  were  illustrations  of  this 
process  at  IMympton  and  Dartmouth.  The  lord  gave  messuages  at  varying  rents, 
hardly  any  two  l)eing  the  same,  and  continued  to  do  so  at  IMympton  long  after  he 
had  granted  the  farm  in  fee  to  the  burgesses  (see  C.  C.  R.,  ii,  p.  303).  .\t  Dartmouth 
there  seems  to  have  been  a  borough  already  in  existence  to  which  the  lord  was 
making  additions;  the  rents  varied  approximately  according  to  the  value  of  the 
tenements  and  were  seldom  the  same.  Hut  in  such  a  borough  as  Cambridge  there 
were  too  many  lords,  too  many  equal  rents  and  houses  with  no  rents,  and  too  great 
a  disproportion  between  the  value  of  a  tenement  and  its  gable  for  this  explanation 
to  sufl'ice.  Plymouth  and  Dartmouth  are  abnormal  anyway;  when  in  the  twelfth 
or  the  thirteenth  century  a  lord  wished  to  start  a  borough  he  did  so  at  a  stroke. 

'  Miss  M.  Hateson,  in  English  Historical  Krview,  vols,  xv,  xvi. 


ACCOMPANIMENTS  AND  COMPARISONS  1 67 

and  whose  laws  or  customs  exist  only  as  they  have  been  more  or 
less  imperfectly  copied  into  the  charters  and  customals  of  those 
towns  which  professedly  received  them;  from  these  sources 
Miss  M.  Bateson,  the  writer  of  the  series  of  articles  in  question, 
has  reconstructed  the  '  BretolHan  Laws,'  at  least  as  to  their 
purport.  It  is  seldom  safe,  in  England  especially,  to  take  literally 
the  statement  that  one  borough  had  the  laws  of  another.  Claims 
of  like  customs  there  certainly  were,  and  often  the  leading  likeness 
was  the  claim,  though  sometimes  the  resemblance  was  almost 
exact  as  at  Bristol  and  Dublin  with  its  followers;  sometimes, 
as  at  Winchester  and  Gloucester,  there  was  identity  without  any 
claim. ^  A  glance  at  the  boroughs  in  Miss  Bateson's  Ust  is  enough 
to  show  that  they  differed  widely,  in  respect  to  their  tenurial 
customs,  among  themselves;  in  many  a  charter  the  term  Laws  of 
Breteuil  seems  to  have  meant  only  what  the  grantor  or  grantees 
knew  of  them;  certainly  it  did  not  always  mean  the  same  things. 

With  some  exceptions  the  boroughs  in  question  are  found  in 
Ireland  or  on  the  Welsh  marches.  They  are  chartered  and  most 
of  them  are  created  boroughs,  looking  back  to  some  baron  as 
founder.  In  boroughs  neither  created  nor  baronial,  as  Hereford 
and  Shrewsbury ,2  Miss  Bateson's  opinion  was  that  the  privileges 
given  to  the  knot  of  Norman  traders,  who  formed  a  hourg  near 
the  royal  castle,  spread  into  the  long  and  previously  settled 
English  borough,  —  though  in  respect  to  the  tenure  the  spreading 
was  exactly  the  other  way.^  She  concluded,  with  Hke  or  equal 
logic,  that  the  term  burgage  tenure,  originating  with  these  Norman 
bourgs,  spread  from  them  to  the  older  boroughs,  "  where  already, 
in  the  king's  gafol,  there  was  a  low  payment  made  by  each  house, 
which  could  not  easily  be  differentiated  from  a  rent."  ^ 

''■  Professor  Charles  Gross  ("  The  Affiliation  of  English  Boroughs,"  printed  as  an 
appendix  to  The  Gild  Merchant  (1890),  i,  pp.  241-281)  shows  how  little  meaning 
there  often  was  in  the  term  '  derived  liberties,'  particularly  in  England.  Cus- 
tomals virtually  identical  in  one  century  might  differ  widely  in  the  next.  Witness 
the  course  of  sale  and  devise. 

^  Both  of  which  Miss  Bateson  claims  as  BretolHan. 

^  Borough-English  and  devise  (of  purchase)  became  common  to  all  Shrewsbury. 
The  former  custom  was  called  there  the  '  Hock-Day  '  tenure. 

*  Miss  M.  Bateson,  in  English  Historical  Review,  xvi,  p.  345.    In  other  words,   ' 
Miss  Bateson  made  English  burgage  tenure  an  institution  of  Norman  origin. 


1 68  BURGAGE  TENURE  IN  ENGLAND 

It  is  scarcely  surprising  that  the  gafol,  or  gable,  *  could  not 
easily  be  differentiated  from  a  rent,'  for  no  one  has  yet  been  able 
to  distinguish  between  a  thing  and  itself.  The  gafol  is  the  rent; 
it  was  the  rent  in  the  Confessor's  day,  in  the  Conqueror's  reign, 
and  in  that  of  his  youngest  son,*  whether  at  Cambridge  as  a  lump 
sum  called  the  landgable,  or  at  Winchester  and  Lincoln  as  a  rent 
due  from  the  individual  urban  tenement.  That  the  term  burgage 
tenure  is  French  is  undoubtedly  true,  but  not  particularly  odd 
in  \iew  of  the  fact  that  most  of  the  terms  of  the  land  laws  are 
French.  That  the  older  boroughs  adopted  this  name,  though  at 
a  late  period  as  a  rule,  is  also  true,  but  proves  nothing  as  to  age 
or  source  of  the  tenure.  Free  urban  tenure,  like  the  law,  is  older 
than  its  technical  terms:  English  law  and  legal  institutions 
started  a  few  years  before  the  Conquest.  In  the  Domesday  era 
the  term  burgage  was  not  apparently  in  use  in  any  borough, 
English  or  Anglo-French,  and  in  Henry  I's  day  there  was  but  a 
suggestion  of  it  at  Winchester,  yet  in  both  periods  there  were 
French  and  English  boroughs  side  by  side  at  Hereford,  Notting- 
ham, and  other  towns.  Domesday  tells  us  that  each  section 
at  Hereford  had  its  own  customs;  ^  that  those  of  the  French  ville 
should  be  Norman  is  not  wonderful.  Instead,  however,  of  the 
extension  of  Norman  tenurial  customs  into  the  English  part  of 
the  borough,  which  Miss  Bateson  imagines,  it  is  very  evident 
that  the  spreading  was  the  other  way.  For  example,  de\ise, 
unknown  in  Normandy,  became  a  common  Hereford  custom. 

In  regard  to  the  basic  facts  on  which  this  Bretollian  theory  is 
founded  there  is  no  question.  Certain  boroughs  in  England  and 
Ireland,  not  one  of  which  was  of  any  imjx)rtance  at  any  time 
during  the  mediaeval  period,  started  under  Norman  lords  and  with 
Norman  customs,''  or  at  least  a  claim  of  having  such  customs. 
Of  these,  according  to  Miss  Bateson,  the  following  were  taken 
bodily  from  the  tenurial  laws  of  Breteuil:  — 

'  Sec  Domesday  and  Liber  VVinton';  also  Mr.  J.  H.  Round's  essay  "  Danegeld  and 
the  Finance  of  Domesday,"  in  Domesday  Studies  (edited  by  P.  I>.  Dove),  i,  pp. 
77-142,  where  he  shows  this  to  be  the  case  with  his  usual  vigorous  and  scholarly 
ability. 

'  The  reference  seems  to  be  to  all  sorts  of  customs,  not  financial  customs  merely. 

'  For  the  reconstructed  Breteuil  customal,  or  rather  Miss  Bateson's  idea  thereof, 
see  English  Historical  Reviru',  .\v,  pp.  754-757. 


ACCOMPANIMENTS  AND  COMPARISONS  1 69 

(i)  A  clause  giving  the  size  of  the  original  burgage}  In  fact  the 
clauses  in  these  charters  seldom  mentioned  the  size  of  the  burgage 
at  all;  that  was  left  to  the  burgesses.  What  the  charters  specified 
was  the  amount  of  land  in  the  fields  accompanying  each  burgage. 
Nor  did  the  founders  of  the  boroughs  in  Ireland  necessarily  get 
the  idea  from  Breteuil;  an  identical  method  was  followed  when 
Bristollian  boroughs  were  founded  in  the  same  country  and  at  the 
same  time.^  In  any  event,  when  a  borough  was  created,  especially 
in  wild  Ireland,  what  else  could  its  creator  do  in  regard  to  land  ? 
If  all  that  a  burgess  might  acquire  should  be  held  under  burgage 
tenure  where  was  the  tenure  to  stop  ?  Strictly  there  would 
be  no  limit.  When  de  Lacy  made  Congleton  a  borough  he  let 
all  the  land  the  burgesses  could  gain  be  held  in  free  burgage,  but 
his  men  with  their  holdings  were  there  already,  and  outlying 
manors  probably  fixed  the  borough  bounds.  Henry  the  Fowler 
used  this  idea  of  a  definite  assignment  of  land  with  each  tenement, 
yet  he  did  not  get  it  from  Breteuil.  However,  had  the  grants  of 
land  with  each  burgage  in  the  BretolHan  boroughs  been  even 
approximately  equal,  and  equal  to  the  grant  at  Breteuil,  it  might 
perhaps  be  assumed  that  the  custom  of  that  Norman  town  had 
served  as  a  precedent.  Instead,  however,  of  being  uniform  the 
assigned  amounts  of  land  varied  from  half  an  acre  to  seven  acres,  — 
and,  furthermore,  no  one  knows  how  much  land  went  with  each 
burgage  at  Breteuil  I 

(2)  An  entrance  or  departure  fee  into  or  from  a  burgage  or  a 
borough}  This  incident  existed  at  some  of  the  BretolHan  bor- 
oughs in  England.  It  is  found  also  at  Norwich,  whose  tenurial 
customs  were  certainly  not  those  of  Breteuil;  while  in  the  most 

^  Miss  Bateson  uses  this  expression,  'size  of  the  burgage,'  in  a  wholly  different 
way  from  that  in  which  I  have  used  it  in  previous  pages  (see  pp.  g^  el  seq.,  gg, 
loi).  When  the  mediaeval  burgess  spoke  of  his  burgage,  or  rather  messuage,  he 
did  not  ordinarily  include  his  acre-strips.  Under  the  heading  "  The  Nature  of  the 
Burgage"  an  attempt  was  made  (see  pp.  gg  et  seq.)  to  discuss  the  question  (as  Miss 
Bateson  raised  it)  and  the  conclusion  reached  was  that  the  specific  number 
of  acres  of  the  charters  was  granted  with  each  burgage,  came  under  the  burgage 
tenure  but  was  never  considered  as  part  of  any  particular  burgage  (save  possibly  in 
two  instances) ,  and  paid  no  burgage  rent. 

2  See  the  charter  to  Rathcool,  Gale,  Corporate  System  of  Ireland,  app.,  p.  x. 

'  What  we  have  called  '  inpermy  and  outpenny.'     See  pp.  57,  127. 


lyo  BURGAGE  TENURE  IN  ENGLAND 

Bretollian  of  all  the  boroughs,  those  of  Ireland,  no  such  fee  was 
ever  known.* 

(3)  A  clause  guaranteeing  freedom  from  marriage.  As  marriage 
was  unknown  in  both  Norman  villes  ^  and  English  boroughs,^ 
this  clause  needs  no  discussion.^ 

(4)  Retrait  Lignager.  There  was  not  the  smallest  necessity 
for  borrowing  this  custom  from  Breteuil,  when  it  was  common 
not  only  to  England  but  to  all  northern  and  western  Europe.^ 

(5)  Alienation  fees.  The  claim  of  a  Bretollian  origin  for  this 
incident,  when  fixed,  and  only  then,  seems  to  be  well  made. 
The  ultra-Bretollian  boroughs  of  Ireland,  however,  never  knew  a 
fee  at  alienation.^ 

(6)  The  uniform  shilling  rent.  Of  all  these  Bretollian  tenuriai 
customs,  almost  the  only  one  which  Miss  Bateson  has  shown  to 
be  common  to  the  Bretollian  boroughs  is  the  uniform  twelve- 
penny  burgage  rent.  However  this  rent  of  a  Norman  shilling  ^ 
existed  in  boroughs  in  both  Ireland  and  England  ^  which  so  far 
from  having  the  laws  of  Breteuil  did  not  receive  Norman  laws 
of  any  sort.^  Yet  on  this  uniform  rent  of  a  shilling  hang  all  the 
tenuriai  laws  of  Breteuil,  and  from  it,  in  Miss  Bateson's  opinion, 

'  The  fee  probably  comes  from  a  foreign  source,  however,  even  in  Norwich, 
where  there  was  more  or  less  French  influence. 

^  Genestal,  La  Tenure  en  Bourgage,  pp.  21,  28-29. 

'  T.  R.  E.,  there  was  something  like  it  at  Shrewsbury  only.     See  p.  164,  note  8. 

*  See  p.  1 2  for  Marriage. 

'•'  Kurthermorc  its  time  limit  and  the  procedure  in  the  matter  of  its  enforcement 
in  the  Bretollian  boroughs  were  English  rather  than  Norman.  Sec  below,  pp.  173, 
174. 

'  To  these  si.\  main  points  which  Miss  Bateson  seized  on  as  Bretollian  she 
added  a  few  others  of  rare  occurrence  and  trivial  consecjuencc.  One  concerns 
the  su[)positi()n  that  a  burgess  who  has  sold  his  burgage  '  will  continue  to  live  in 
the  town,'  and  another  relates  to  the  rebuilding  of  a  destroyed  burgage. 

^  Rents  of  this  amount  were  common  in  Normandy.  At  \'erneuil  the  rent  of 
12(1.  did  not  increase  with  the  number  of  houses,  just  as  in  the  English  Bretollian 
boroughs,  i)ut  in  this  connection  there  were  contradictory  statements  in  the  Norman 
charters. 

*  Watcrford  and  I'ontefract  to  wit;  the  former  having  Bristol  and  Dublin 
customs,  the  latter  having  those  of  (Irimsby.  See  Parliamentary  Papers.  1835, 
x.w,  p.  I '173. 

*  CardiiT  was  one  of  the  boroughs  with  Norman  but  not  Bretollian  customs. 
Its  burgage  rents  were  i2d.  each. 


ACCOMPANIMENTS  AND  COMPARISONS  171 

arose  the  idea  of  a  uniform  tenure/  a  conclusion  worth  neither 
denial  nor  dispute.^ 

Such  was  the  '  uniformity  of  tenure  '  which  has  been  supposed 
to  have  resulted  from  a  gift  of  the  laws  of  Breteuil,  and  whose 
influence  has  been  thought  sufficient  to  lend  a  name  to  the  tenure 
in  the  older  boroughs.  As  far  as  Breteuil  itself  was  concerned 
it  is  unlikely  that  it  lent  even  that.  The  actual  state  of  affairs 
seems  to  have  been  as  follows.  Those  boroughs  founded  by  barons 
during  the  Norman  period  as  BretolHan  boroughs,  and  settled 
mainly  by  Norman  burgesses,  probably  did  have  the  laws  of 
Breteuil  if  their  charters  or  customals  so  stated;  such  boroughs, 
however,  were  very  few.  Those  founded  at  a  later  period  seem 
to  have  had  only  parts  of  the  Bretollian  laws,  and  not  important 
parts  at  that;  their  founders,  knowing  but  portions  of  the  laws 
of  the  httle  ville,  and  those  portions  only  by  repute,  apparently 
filled  in  the  gaps  with  Norman  customs  in  general.  If,  however, 
the  more  inclusive  '  Norman  '  be  substituted  for  '  BretolHan,' 
the  tenure  in  these  baronially-founded  semi-foreign  little  boroughs 
was  uniform  in  respect  to  a  custom  vastly  more  important  than 
any  of  the  points  of  resemblance  so  carefully  enumerated  by 
Miss  Bateson,  —  more  important  even  than  such  a  weighty 
matter  as  the  twelvepenny  burgage  rent,  —  there  was  neither 
sale  of  inheritance  ^  nor  devise  of  either  sort  of  realty  in  Norman 
villes,  and  in  those  boroughs  of  England  and  Ireland  which  pro- 
fessedly had  Norman  customs.  Concerning  freedom  of  devise, 
the  most  important  legal  feature  of  EngHsh  burgage  tenure,* 
Miss  Bateson  seems  to  have  known  nothing  whatever.  Without 
attempting  to  underrate  Norman  influence  in  general  in  English 
boroughs,  we  may  say  that  it  did  not  affect  the  tenure  at  all  except 
in  unimportant  towns  which  formed  a  group  apart,  and  that  in 

^  English  Historical  Review,  xvi,  pp.  343-344. 

^  Even  on  the  negative  side,  as  it  were,  these  Bretollian  boroughs  varied, 
not  only  from  their  supposed  original  but  among  themselves.  There  was  no  heriot 
nor  relief  at  Breteuil  apparently.  There  was,  however,  at  such  imitative  boroughs 
as  Manchester,  Stockport,  Salford,  Oswestr\-,  and  other  towns  which  were  or 
claimed  to  be  Bretollian.  Miss  Bateson  considered  Denbigh  a  Bretollian  borough. 
Such  of  its  tenurial  customs  as  are  known  were  English  or  Gascon. 

'  Sale  in  need  crept  into  a  few  Bretollian  boroughs  in  England. 

*  Bracton  and  Littleton  so  considered  it. 


172  BURGAGE  TENURE  IN  ENGLAND 

some  even  of  these  it  was  overcome  in  time  by  freer  English 
custom.' 

Urban  Tenure  in  Normandy,  the    Netherlands, 
AND  Germany 

Whatever  the  influence  which  the  customs  of  a  single  Norman 
ville  or  of  all  the  towns  of  Normandy  exercised  on  the  tenure  of 
some  small  English  boroughs,  a  short  account  of  urban  tenure, 
in  regions  where  Germanic  land  laws  held,  may  serve  to  bring 
into  relief  the  resemblances  and  differences  of  this  tenure  in  the 
countries  to  which,  racially  and  geographically,  England  is  most 
closely  allied. 

In  Normandy  "^  one  who  held  in  burgage  was  not  subject  to  the 
feudal  aids;  so  decided  the  Exchequer  of  Normandy  in  the  thir- 
teenth century.'  Homage  was  not  done  nor  fealty  sworn.'' 
Relief  and  lods  el  ventes  were  incidents  of  the  tenure  in  apparently 
a  minority  of  the  villes.^  According  to  the  coutume  reformee 
relief  seems  to  have  been  usually  "3  sols  pour  mansions,  masures, 
et  manoirs  "  containing  less  than  an  acre,  and  M.  Genestal  con- 
siders that,  as  most  burgages  were  of  this  sort,  relief  was  in  general 
3  sols  for  each.^  Lods  et  ventes,  though  called  the  treizieme,  were 
really  one- twelfth.'  There  were  also  fixed  alienation  fees;  at 
Flers  this  fee  was  four  denier s  tournois  at  each  sale;^  at  Monti- 

'  To  wit,  sale  of  inheritance  appeared  in  such  boroughs  as  Altringham  and 
Rhuddlan,  and  even  free  devise  in  the  former.  Possibly  the  very  limited  devise 
at  Manchester  was  imitative  of  a  temporary  custom  of  the  free  non-military  tenure 
outside  the  villes  in  Normandy. 

'  Our  authority  is  Genestal,  La  Tenure  en  Bourgage:  Elude  sur  la  Propriili. 
Foncicre  dans  les  Villes  Normands.  The  order  of  the  following  account  will  be  the 
order  of  M.  G6nestars  work,  to  the  purport  of  which  we  trust  we  shall  do  no  injustice. 

'  G6nestal,  La  Tenure,  p.  21,  a.  1239.  A  demand  had  been  made  on  the  bour- 
geois of  Haie  du  Theil  for  an  '  aide  de  manage.' 

*  Ibid.,  p.  64.  M.  G6nestal  states  this  on  the  authority  of  the  coutume  of  the 
sixteenth  century. 

*  Ibid.,  pp.  32-33.  These  incidents  are  dealt  with  together  and  somewhat  more 
vaguely  than  one  could  wish. 

*  Ibid.,  p.  115.    .\t  Havre  relief  was  '  3  sols  tournois.' 
'  Ibid.,  p.  60.    8J%  of  ihe  price  paid,  says  our  author. 

*  Ibid.,  p.  115.  Though  relief  was  owed  at  Havre  there  was  no  alienation  fee. 
This,  like  many  of  the  examples  which  M.  Genestal  was  obliged  to  use,  is  of  very 
late  date.     Havre  was  founded  by  Francis  I. 


ACCOMPANIMENTS  AND  COMPARISONS  1 73 

villiers  there  were  relief  and  lods  et  ventes,^  and  in  addition  some 
burgages  owed  villein  service  or  corvee.^ 

Retrait  lignager  apparently  existed  in  all  towns,  but  the  period 
of  its  effectiveness  was  limited  to  the  interval  between  pubKc 
announcement  of  the  sale  and  payment  of  the  price  agreed  on, 
an  interval  supposed  to  be  a  prescriptio  de  hora  and  less  than  a 
day;  in  the  sixteenth  century  this  interval  became  forty  days.^ 
Dower  rights  were  confined  to  '  acquits  '  and  seem  to  have  been 
half  of  such  burgages.^  In  the  Norman  towns  there  was  one  sort 
of  tenement  which  had  no  English  counterpart,  in  theory  at  least, 
the  franc  alien,  or  allod.^  Such  tenements,  owing  no  services 
and  having  no  lords,  were  foimd  mainly  in  the  older  towns,  as 
Rouen,  Caen,  and  Bayeux.^  In  the  villes  of  Normandy,  as  in 
other  towns  of  northern  Europe,  a  few  burgages  owed  rents 
expressed  in  terms  of  hens;  ^  the  usual  rent,  however,  was  in  money, 
and,  at  least  in  chartered  and  created  villes,  was  commonly  i2d.^ 

^  Genestal,  La  Tenure  en  Bourgage,  p.  116.  Not  all  the  burgages  were  liable  to 
them. 

^  Ibid.,  p.  119.  A  small  amount  of  villein  service,  such  as  a  few  days'  work  at 
harvest,  existed  till  the  Domesday  era  at  one  or  two  towns  on  the  Welsh  border. 
See  also  Ballard,  British  Borough  Charters,  pp.  94  f. 

^  Genestal,  La  Tenure  en  Bourgage,  pp.  35,  81.  The  forty  day  period  is  that 
of  the  coutume  reformee.  This  movement  toward  greater  restriction  in  Normandy 
may  be  compared  with  the  change  from  restriction  to  freedom  in  England,  Ger- 
many, and  the  Netherlands.     Was  it  due  to  French  influence  after  1203  ? 

*  Ibid.,  pp.  35-47.  M.  Genestal  gives  much  space  and  attention  to  this  subject 
and  that  of  '  droits  successoral '  {ibid.,  pp.  47-55),  subjects  pertaining  rather  to 
Intestacy,  were  it  not  that  realty  descended  in  no  other  way  in  the  Norman  villes. 

^  In  the  English  boroughs  there  were  many  tenements  which  owed  neither 
rent  nor  service,  but  the  lord  of  the  borough  was  their  lord.  The  distinction  be- 
tween these  and  the  '  francs  alleux  '  is  one  of  theory  and  descent. 

^  Ibid.,  p.  129:  Legras,  Le  Bourgage  de  Caen,  pp.  116-117.  Some  of  the 
records  quoted  by  M.  Genestal  remind  one  of  the  items  in  Domesday;  for  instance 
a  certain  chatelain  gave  to  a  church  in  Louviers  "  unum  burgensem  cum  suis 
tenementis  "  {La  Tenure,  p.  97)  —  though  burgage  tenure  was  always  free  tenure 
—  just  as  in  England  lords  have  burgesses  of  lod.,  and  so  on. 

^  Genestal,  La  Tenure  en  Bourgage,  p.  99.     Cf.  Leicester  and  Portsmouth. 

*  At  St.  Lezier  it  was  4d.  for  12  ft.  of  frontage  {ibid.,  p.  100),  which  recalls  the 
12  ft.  hmit  at  Preston.  In  the  fifteenth  century  the  rule  for  rental  and  division 
(M.  Genestal  is  probably  speaking  of  created  villes.  See  pp.  98-100  was  generally 
as  follows.  The  whole  area  of  the  ville  was  in  large  blocks,  masurae,  which  were 
usually  divided  into  lots,  each  with  its  house  and  curtilage,  but  the  shilling  rents' 
lay  on  the  masurae,  which  might  or  might  not  be  of  equal  size,  while  each  holder 
of  a  subdivision  paid  his  part. 


174  BURGAGE  TENURE  IN  ENGLAND 

In  general  this  rent  of  a  shilling  seems  to  have  been  considered 
the  outward  sign  of  tenure  in  burgage.*  Devise  was  unknown,^ 
and  escheat  was  the  lord's  when  there  failed  an  heir  within  the 
seventh  degree.^ 

From  M.  Genestai's  account,  rather  than  the  above  brief 
description,  it  seems  that  not  only  was  Breteuil  t>pical  of  the 
Norman  bourgs,  but  that  almost  any  other  bourg  would  have  served 
equally  well  as  a  t>Tpe.  Most  of  them  were  apparently  created, 
and  had  neither  the  freedom  of  Rouen  and  Bayeux,  nor  the 
villein  service  of  some  smaller  towns."*  Relief  and  alienation 
fees  were  different  from  the  corresponding  incidents  in  England,* 
and  appear  to  have  been  much  commoner,  particularly  the  latter. 
Retrait  lignager  in  the  Norman  villes  seems  to  have  been  unique 
in  respect  to  the  narrow  time-limit  for  the  kinsmen's  claim;  in 
England  and  Germany  such  a  claim  might  be  deferred  for  a  year 
and  a  day.*  Sale  in  need  and  other  expedients  for  evading  the 
kin's  retrait  seem  to  have  been  unknown  in  Norman  towns.'' 

'  Genestal,  La  Tenure  en  Bourgage,  p.  io8.  At  Montivilliers,  however,  the  rent 
of  a  masura  was  iid.  and  each  holder  of  a  half-masura  paid  5^d.  (ibid.,  p.  103). 
M.  Gdnestal  was  well  aware  of  the  contradictory  charters  given  by  Henry  II  of 
England,  the  one  to  Verneuil,  the  other  to  Pontorson  (ibid.,  p.  106),  but  shows  that, 
though  in  some  villes  (as  Pontorson)  each  new  burgage,  formed  by  subdivision, 
must  pay  i2d.,  the  rule  of  the  shilling  rent  for  each  masura,  a  rent  never  to  be 
increased  or  lessened,  was  the  custom  of  Normandy. 

*  Ibid.,  p.  172. 

'  Ibid.,  p.  139.  Probably  M.  G6nestal  means  the  seventh  degree  of  relationship 
according  to  Roman  law.  At  tantalizing  half-burghal  Kingsthorpe  the  limit  of 
kinship  in  respect  to  preemption  was  the  fourth  degree  (see  Glover,  Kingsthorpiana, 
p.  41).     This  Germanic  fourth  is  the  same  as  the  Roman  seventh. 

*  It  seems  unfortunate  that  no  more  is  known  of  these  older  Norman  villes. 
Probably  the  Domesday  scribes  got  the  name  '  masura  '  therefrom,  though  in 
Bayeu.x  it  could  no  more  have  been  the  artificial  masura  of  the  bourgs  than  it  was  in 
Bath. 

*  See  te.xt,  p.  54.  In  Normarvdy  the  fi.xed  alienation  fee  was  the  exception, 
lods  et  rentes  of  one-twelfth  were  the  rule. 

*  In  the  period  during  which  comparisons  are  of  any  value  retrait  in  the  Norman 
villes  was  less  than  a  day.  Or  is  M.  Genestal  referring  merely  to  the  time-limit 
of  court  process  ?  (See  Northampton,  p.  116.)  Even  as  such,  the  interval  seems 
small.  He  says  nothing  of  year  and  day  concerning  this,  but  it  seems  as  if  the  term 
must  have  been  known  to  the  tres  ancien  coutume  of  c.  1200. 

^  Or  does  M.  Genestal  omit  to  mention  them  ?  Sale  in  need  existed  in  boroughs 
in  England  having  Norman  customs. 


ACCOMPANIMENTS  AND  COMPARISONS  1 75 

On  the  whole  the  tenure  in  Normandy  was  far  less  free  and  much 
more  rigid  than  the  tenure  in  England. 

The  tenure  in  the  villes  neuves  of  southern  France  resembled 
that  of  the  Norman  bourgs,  except  that  it  seems  somewhat  freer. 
Perhaps  it  is  better  to  say  that  it  resembled  the  tenure  in  created 
towns  in  general,  common  conditions  having  produced  the  same 
results  everywhere  in  northern  Europe.^  In  the  bastides  rents 
were  often  separate  for  building-lot,  garden,  and  land  in  the  fields.^ 
Lods  et  ventes  were  apparently  unknown.^ 

Like  other  Low  Country  institutions,  urban  tenure  in  the 
Netherlands  was  both  early  and  rapid  in  development;  but  it 
differed  little  from  burgage  tenure  in  England.  In  the  Flemish 
cities,  particularly  in  Ghent,  the  land  was  the  original  tenement; 
at  an  early  date  it  and  the  house  thereon  were  often  separately 
held.^  Many  areae  or  mansiones  ^  were  allodial;  some  were  held 
by  rents,  which  seem  often  to  have  varied  with  the  desirability 
of  the  tenement.^  The  tenure  in  Ghent  was  heterogeneous, 
but  the  noble  or  episcopal  lord  often  had  his  holdings  in  one 
block.  During  the  eighty  years  preceding  the  first  quarter  of 
the   twelfth   century   many  a   lord   remitted    the  rents   to   his 

'  Our  authority  for  the  bastides  is  A.  Curie  Seimbres's  Essai  sur  les  Bastides. 
Just  as  Edward  I  allowed  the  new  burgesses  of  Overton  to  use  his  wood  to  build 
their  houses,  so  we  find  the  same  right  granted  to  the  settlers  of  the  bastides  (Curie 
Seimbres,  p.  155).  Such  houses  must  be  built  within  a  year,  as  a  rule  [ibid.,  p.  170). 
Several  examples  of  this  privilege  in  England  are  given  in  Ballard,  British  Borough 
Charters,  pp.  54-57. 

E.  A.  Lewis,  The  Mediaeval  Boroughs  of  Snowdonia,  pp.  30,  61,  notes  the  par- 
allehsm  between  the   bastides  and  the  English  garrison  boroughs  of  North  Wales. 

^  See  Curie  Seimbres,  Essai  sur  les  Bastides,  p.  167.  At  Grenade  the  rent  of  a 
lot  was  5d.,  of  a  garden  3d.,  of  an  arpent  of  land  lod.  At  Arthez  the  maisons  {i.  e., 
lots)  were  5  brasses  by  10  brasses  (about  30  ft.  by  60  ft.).  At  Gimont  and  Solomiac 
the  maisons  were  5  brasses  by  14  brasses  and  the  gardens  a  quarter-ar/'ew/  each; 
the  rent  of  a  maison  (or  lot)  was  6d.,  of  a  garden,  3d.,  of  an  arpent  of  land  i2d. 
The  average  frontage  of  a  lot  was  5  to  6  metres,  its  depth  was  variable. 

^  Ibid.,  p.  119. 

*  Des  Marez,  Propriete  Fonciere  en  Flandre,  p.  3. 

*  The  common  term  in  the  early  period,  when  the  lord's  lands  were  filling  up 
with  merchants  and  handworkers,  seems  to  have  been  one  of  these.  See  ibid., 
pp.  14,  89. 

^  Ibid.,  p.  14:  "  secundum  positionem  mansionimi  suarum." 


176  BURGAGE  TENURE  IN  ENGLAND 

burgesses.^  During  the  early  period  there  seems  to  have  been 
much  traffic  in  these  allods  by  prescription  and  allods  by  grant. 
Then,  through  subdivision  among  a  growing  population,  they 
were  cut  up  into  tenements,  usually  for  a  rent,  small  parts  (still 
allodial)  remaining  as  the  possession  of  an  aristocratic  bour- 
geoisie.'^ 

AUenation  fees  had  been  due  in  some  cities,  mainly  at  sales  of 
church-owned  tenements;  but  the  city  of  Ghent  took  these  fees 
and  added  them  to  its  registration  charges.  In  some  cities,  as 
Arras,  a  fee  for  registration  was  charged  which  resembled  strongly 
some  of  the  enrolment  fees  in  the  Cinque  Ports.'  This  was 
merely  a  means  of  taxation,  but  may  have  been  the  revival  of  an 
old  custom  in  the  modern  shape  of  a  succession-duty."*  Rents 
were  high  and  variable;  shillings,  not  pence. ^  Registration  of 
deeds,  when  a  tenement  other  than  an  allod  was  sold,  was  enforced 
through  publicity.*  In  one  of  the  suburbs  of  Ghent,  where  the 
church  was  groundlord,  the  right  to  take  a  heriot  lasted  till  the 
fifteenth  century:  it  is  doubtful  whether  this  incident  ever  existed 
in  the  city  proper.^  Relief  also  existed  in  some  of  the  suburbs 
of  the  same  city,  more  particularly  those  which  had  grown  up 
on  abbey  lands;  the  usual  amount  was  one  year's  rent  of  the 
tenement.^ 

In  Ghent,  as  in  some  other  continental  cities,  while  the  owner- 
ship of  the  land  remained  with  the  lord,  the  house  was  considered 
the  property  of  its  builder,  and  as  such  was  a  subject  of  commerce 
and  of  separate  transfer.^     As  in  many  English  boroughs,  there 

'  I)es  Marez.  Propriite  Fonciere  en  Flandrc,  p.  23;  between  1037  and  11 20. 
This  would  virtually  make  such  tenements  allods.  Houses  in  Ghent  {ibid.,  p.  37) 
still  bear  the  inscription  of  allodialism,  "  I-rec  House,  Free  Earth." 

2  Ibid.,  pp.  44-50,  152. 

'  Ibid.,  p.  106.  The  fee  was  4d.  in  the  pound  from  the  buyer  and  4d.  from  the 
seller  when  an  inheritance  was  sold,  a.  1358. 

*  This  is  unlikely,  however,  for  even  clerical  exaction  of  alienation  fees  had  dis- 
appeared long  before.     Sec  ibid.,  p.  106. 

'  Ibid.,  pp.  127-128. 

*  Ibid.,  p.  155. 

'  Ibid.,  p.  207.    There  was  no  mention  of  heriot  in  the  charter  of  1 174. 

*  Ibid.,  p.  294. 

'  Ibid.,  p.  231.  Says  M.  Des  Marez,  "  the  house  is  a  movable,"  as  much  as 
"  la  table  el  les  bancs."     Some  houses  seem  to  have  been  very  movable  when  their 


ACCOMPANIMENTS  AND  COMPARISONS  IJJ 

was  a  limit  beyond  which  a  messuage  might  not  lie  fresh. ^  Retrait 
lignager  and  retrait  feodal,  or  what  was  left  of  them,  were  officially 
abolished  at  Ghent  in  the  twelfth  century;  ^  the  former  lasted 
longer  in  smaller  cities,^  the  latter  was  never  known  in  the  old 
city  of  Ghent.**  In  the  fourteenth  century  letting  for  short  terms 
became  common  in  the  Flemish  cities.^ 

The  leading  peculiarities  of  urban  tenure  in  the  Low  Countries 
were  its  freedom  from  restriction,  its  precociousness,  and  its 
disorderliness.  Though  almost  all  the  incidents  which  were 
features  of  urban  tenure  anywhere  could  be  found  in  the  cities 
of  the  Netherlands,  they  lay  only  on  isolated  tenements  or  blocks 
of  tenements  absorbed  in  the  growing  metropolitan  area.^  Dis- 
tricts so  annexed  to  the  city  sometimes  brought  their  burdens 
with  them,  but  did  not  long  retain  them;  the  retention  of  incidents 
lying  on  isolated  tenements  arose  out  of  tenurial  heterogeneity. 
The  early  disappearance  of  restrictions  of  all  sorts  in  most  of  the 
Netherlandish  towns  was  due  to  commerce  and  manufacturing, 
to  the  weakness  of  the  counts  of  Flanders,  and  to  usurpation  of 
the  rights  of  individual  lords.  Though  in  many  respects  such  a 
city  as  Ghent  was  a  virtual  republic,  and  as  far  in  advance  of 
London  as  London  of  CarHsle,  yet  the  tenures  in  the  older  Flemish 
and  English  cities  resemble  each  other  closely  and  far  more  than 
either  resembles  the  tenure  in  the  villes  of  Normandy.  It  does 
not.  however,  follow  that  either  necessarily  affected  or  influenced 

owners  were  fined  if  they  took  them  out  of  the  city  (Saffelaere,  in  1260),  especially 
at  night. 

Where  the  house  was  a  chattel  it  is  apparent  that  its  alienation  was  not  subject 
to  the  kin's  retrait.  I  have  found  no  instance  in  England  where  land  and  house 
were  alienable  in  different  degrees,  though  in  London  especially  and  in  the  latter 
middle  ages,  each  or  any  part  thereof  might  be  separately  transferred  and  separately 
held.  Whatever  the  Flemish  or  Cologne  view,  in  the  English  boroughs  the  mobility 
of  inherited  land,  house,  or  rent  was  the  same;  each  was  governed  by  the  rules  of 
the  kin's  preemption  if  the  borough  were  one  of  restriction. 

^  Des  Marez,  Propriete  Fonder e  en  Flandre,  p.  233.  That  is,  a  house  must  be 
built,  or  rebuilt,  usually  within  a  year. 

^  Ibid.,  p.  247. 

'  Ibid.,  p.  248.    The  limit  was  the  usual  year  and  day. 

*  See  ibid.,  pp.  249-252. 

^  Ibid.,  p.  255.    Cf.  London  about  the  same  period. 

^  See  ibid.,  p.  295.  The  city  of  Ghent  grew  so  rapidly  that  it  overspread  many 
districts  where  the  dwellers  owed  feudal  or  villein  service. 


1 78  BURGAGE  TENURE  IN  ENGLAND 

the  other.  Whatever  reciprocal  influence  there  may  have  been 
was  much  more  likely  to  have  concerned  burghal  government 
and  taxation,  and  to  have  been  political  rather  than  tenurial. 

In  Germany,'  dealing  first  with  the  towns  of  the  Upper  Rhine, 
we  find  practically  all  the  features  of  burgage  tenure  in  England, 
though  not  always  in  the  same  degree.  Rents  were  usually 
payable  in  money,  though  sometimes  owed  in  kind.^  Traffic  in 
perpetual  rents  out  of  houses  was  much  greater  in  the  commercial 
German  cities  than  in  the  boroughs  of  agricultural  England.^ 
During  the  early  period  such  rent-selling  needed  the  lord's  con- 
sent, for  the  seller  might  overweight  his  tenement  and  so  endanger 
the  lord's  service.''  Mortgages  were  the  same  as  in  England, 
mortgages  of  Germanic  law.^ 

The  kin's  preemption  for  inheritance  was  exactly  the  same  as  in 
England,  and  might  be  evaded  by  the  same  sale  in  need.^  Retrait 
fcodal  was  a  very  infrequent  incident.^     In  a  few  towns  a  fixed 

*  The  authorities  for  what  follows  concerning  the  tenure  in  Germany  will  be 
Arnold's  Geschichte  des  Eigentums  in  den  deutschen  Stddten,  Keutgen's  Deutsche 
Sladtverjassung,  and  his  Urkunden  zur  stddtischen  Vcrfassungsgeschichie.  Arnold's 
Geschichte  des  Eigentums  centres  on  Basel,  as  Des  Marez's /'ro/>r/f/^  Fonciere  en 
Flandre,  on  Ghent;  Keutgen's  Sladtverjassung,  a  somewhat  pf)lemical  work  dealing 
with  town  constitutions  and  origins,  and  his  Urkunden  (for  these  see  Introd.,  p.  8),  a 
collection  of  town  charters  and  customals  (Stadtrechte),  are  not  limited  to  any  partic- 
ular region. 

In  the  .\ppendix  (pp.  191-208)  there  will  be  found  a  brief  monograph  on  urban 
tenure  in  Germany,  which  is  exclusive  of  what  follows  hereunder,  and  the  material 
for  which  is  obtained  from  the  sources. 

*  Arnold,  Geschichte  des  Eigentums,  p.  35.  Hens  were  the  favored  medium 
(cf.  Leicester,  Southampton,  etc.);  pepper,  cloves,  and  cummin  were  frequent 
variations  in  the  rent-service.     See  ibid.,  p.  no. 

'  In  an  age  when  giving  and  taking  interest  lay  under  the  church's  ban,  and 
when  a  burgher's  tenement  was  the  only  security  he  had  to  offer,  this  method  of 
getting  capita!  (the  loan  being  the  principal,  the  rent  the  interest),  often  from  the 
church  itself,  was  constantly  used. 

*  Ibid.,  pp.  1 13  f/  seq.  In  many  original  documents  quoted  by  Dr.  .\rn(jUl  ajjpear 
the  names  of  successive  previous  holders  of  a  single  tenement,  as  in  the  Rotuli 
Ilundrcdorum  and  Cole's  Rental  of  the  Houses  in  Gloucester.     See  ibid.,  p.  123. 

'  Ibid.,  pp.  I  25-1  27. 

*  If  an  heir  were  under  age  his  kin  often  consented  for  him,  but  the  Schoffen 
must  approve  and  record  this  consent,  which  they  sometimes  refused  to  do,  appar- 
ently susiK'cting  the  kin's  bona  fides.     Ibid.,  p.  132. 

^  Ibid.,  p.  154. 


ACCOMPANIMENTS  AND  COMPARISONS  1 79 

alienation  fee,  the  Ehrschatz,  was  taken  at  sale/  and  concentration 
or  accumulation  of  tenements  in  the  hands  of  a  few  was  as  marked 
in  the  German  towns  as  in  the  English  boroughs.  Copartners 
held,^  deeds  were  enrolled;^  a  burgher's  wife's  dower,  and  joint 
consent  to  sale  were  as  in  England.*  Burgess-rights  might 
be  lost  if  a  tenement  shrank  within  a  prescribed  frontage;  but 
there  was  no  impediment  on  any  sort  of  division.^  Not  all  these 
incidents  existed  in  full  force  in  any  one  town,  and  they  never 
lay  on  all  the  tenements.  The  commonest  incident  in  the  regions 
of  the  upper  Rhine  valley  seems  to  have  been  the  fixed  alienation 
fee ;  heriot  and  reHef  appear  to  have  been  unknown. 

In  Germany  as  a  whole  the  kin's  preemption  was  very  common. 
Its  presence  is  not  always  directly  stated  in  many  of  the  Stadt- 
rechte,  but  is  implied  in  the  distinction  between  purchase  and 
inheritance,  or  in  the  year  and  day  limit  upon  challenge  by  the 
kin,  as  at  Spires,^  Bremen,'^  Worms,^  Augsburg,^  Freiburg, ^^  Berne," 
Hagenau,^^  Soest,^^  and  Ratisbon.^*  Inheritance  might  be  sold 
everywhere,  however,  in  necessity.  Retrait  feodal  existed  at 
Liibeck,  an  abbatial  city.^^ 

^  Arnold,  Geschichte  des  Eigentums,  p.  153:  not  for  all  tenements. 
2  Ibid.,  p.  157.  ^  Ibid.,  p.  165. 

*  Ibid.,  pp.  166-167. 

*  Ibid.,  pp.  181,  183.  There  was  as  much  liberty  as  in  London,  and  more  license, 
in  respect  to  division.  Sometimes  the  boundary  between  two  tenements  was  a 
stripe  up  and  down  or  across  the  front  of  a  house. 

^  Keutgen,  Urkunden  zur  stddtischen  Verfassungsgeschichte,  p.  15,  a.  mi. 

^  Ibid.,  p.  19,  a.  1206.  Possession  for  a  year  and  a  day  gave  one  who  had 
acquired  '  aliquam  hereditatem  '  under  Weichbild  the  most  favorable  position 
as  regards  claim  to  the  tenement.  Though  the  term  is  much  wider,  one  may  trans- 
late Weichbild  by  urban  tenure.     It  denotes  the  '  liberties  '  of  the  city. 

^  Ibid.,  p.  57,  a.  1023-25:   '  hereditalis  area.' 

'  Ibid.,  p.  91,  a.  1156.  As  in  England  the  year  and  day  began  only  when  the 
heir  came  of  age,  or  returned  from  abroad,  and  so  on. 

"  Ibid.,  pp.  1 1 7-1 18,  a.  1 1 20.  When  a  burgher  died  apparently  kinless  the 
'  conjuratores  '  held  his  inheritance  a  year  and  a  day  to  allow  a  possible  claim. 

"  Ibid.,  p.  129,  a.  1218. 

'^  Ibid.,  p.  134,  a.  1 164.  An  inheritance  was  held  in  suspense  as  at  Freiburg 
and  Berne. 

1^  Ibid.,  p.  142,  a.  1120-  ?5o.  After  undisturbed  possession  for  a  year  and  a  day 
"  de  cetero  sui  warandus  erit." 

1^  Ibid.,  p.  198,  a.  1230.    The  Umit  of  challenge  there  was  unique,  being  ten  years. 

^^  Ibid.,  p.  60,  a.  1 182;  for  inheritance  only.    The  would-be  seller  "  primo  abbati 


l8o  BURGAGE  TENURE  IN  ENGLAND 

Heriot  {Herwede,  Heergewdte)  was  military  in  character,  was 
not  devisable,  and  went  to  a  lord  only  when  the  burgher's  death 
without  male  heir  left  no  one  else  to  inherit  it/  as  at  Bremen  ^ 
and  Munster.'  Relief  was  owed  by  buyers  as  well  as  by  heirs 
at  Wetzlar;  *  by  the  latter  alone  at  Medebach.^  At  times  there 
were  alienation  fees,  often  the  same  in  amount  as  rehef,^  with 
which  they  were  frequently  confused.  Wardship  (by  a  lord), 
marriage,  and  homage  seem  to  have  been  unknown.  Fealty, 
in  Cologne  at  least,  was  the  same  as  in  England.^ 

Original  rei:its,  as  in  England,  were  sometimes  variable  and 
sometimes  the  same  for  each  tenement.^  As  in  England  the  rents 
of  the  older  towns  were  low  and  variable;  in  some  of  these  there 
were  a  few  rents  in  terms  of  hens,  as  at  Frankfort.^  These  Arnold 
thinks  were  only  symbolical  hens  in  the  later  middle  ages.'"  Though 
financial  obligations,  as  the  Erbleihe,  might  lie  on  the  domus  and 
not  on  the  area,^^  unlike  the  Flemish  usage  the  former  seems  not 

aream  suam  cum  edificiis  que  in  ea  construxit  eodem  prctio  quo  altcro  cmenda  sit 
offerat."     Cf.  Whitby,  p.  54,  n.  2. 

The  usual  term  of  the  sources  (Latin)  for  land  is  area;  domus  commonly  means 
the  house  alone. 

*  It  consisted  of  the  best  war-horse,  a  sword,  a  spear,  etc. 

'  Keutgen,  Urkunden  zur  slddlischen  Verfassungsgeschichte,  p.  19,  a.  1186.  The 
Emperor  held  a  childless  burgher's  Herwede  a  year  and  a  day  from  his  death, 
"  sub  cxpectatione  legitimi  heredis,  qui  illud  hereditario  jure  dcbeat  obtinere." 

'  Ibid.,  p.  151,  rir.  a.  1221.  "  Hcrcditas  que  dicitur  herwede  "  might  not  be 
devised. 

*  Ibid.,  p.  59,  a.  1 180.    It  was  i2d.,  three  times  the  rent  of  a  tenement. 

*  Ibid.,  p.  146,  a.  1 165.    Twice  a  year's  rent. 

*  /6/<f.,p.  142.  .\t  Soest  twice  a  year's  rent.  There  was  no  relief .  .XtMedebach 
(ibid.,  p.  146)  the  fee  was  the  same  and  must  be  paid  at  sale  of  '  domum  et  septa  ' 
(enclosures).  Heirs  also  paid.  It  will  be  noticed  that  these  incidents  exist  only 
in  com[)aratively  unimportant  towns. 

^  Ibid.,  p.  71,  a.  1207. 

'  Ibid.,  p.  59,  a.  1 180,  W'etzlar,  4(1.  from  each  urea;  ibid.,  p.  137,  a.  1194-98, 
Dieburg,  6d.;  ibid.,  pp.  142,  146,  Soest  and  Medebach.  probably  variable;  ibid., 
p.  150,  a.  ii4,s,  Ilamm,  4(1. 

'  Ibid.,  p.  190;   only  when  owed  from  old  time. 

'"  Gesihichle  dcs  Eigenliims,  p.  35.  These  hen  rents,  on  which  .XrnoUI  and  other 
earlier  writers  laid  so  much  stress  as  indicating  the  '  domainial  '  origin  of  urban 
tenure.  Dr.  Keulgen  dismisses  with  a  few  words:  "  Er  erklart  sich  einfach  daraus, 
dass  er  in  Zeitcn,  wo  Jedermann  Hiihner  hielt.  Geld  aber  noch  rar  war,  fiir  die 
Meisten  leichter  zu  entrichten  war  "  {Deutsche  Stadtverfassung.  p.  120). 
"   Y^^ViUXgcn,  Deutsche  Stadtverjdssung,  \^').  121-122. 


ACCOMPANIMENTS  AND  COMPARISONS  l8l 

to  have  been  regarded  as  a  chattel  and  therefore  free  from  the 
kin's  preemption.^  With  each  tenement  there  was  at  times  an 
assigned  quantity  of  land  in  the  fields,  and  gardens  were  occa- 
sionally given  with  the  houses.^ 

Escheat  in  the  great  commercial  cities  was  the  community's, 
in  smaller  towns  the  lord's.  In  towns  of  the  former  class  the 
tenement  was  commonly  held  a  year  and  a  day  to  await  a  claim 
by  a  kinsman;  none  appearing,  it  was  sold,  half  the  proceeds 
being  applied  pro  anima  sua  and  half  for  some  useful  purpose.^ 
Thus  at  Freiburg,*  Berne, ^  and  Hagenau  ^  escheats  went  to  the 
city;  at  Hamm,''  Euskirchen,^  and  in  special  cases  at  Vienna  ^ 
they  went  to  the  lord.  Forfeiture,  when  it  passed  mere  waste, 
seems  often  to  have  been  to  the  city.^"  In  some  cities,  apparently 
proportionately  fewer  than  in  England,  sale  and  less  frequently 
devise  were  free,  the  kin's  retrait  having  disappeared.^^ 

It  is  apparent  that  the  customs  of  urban  tenure  in  Germany 
shared  the  heterogeneity  of  German  institutions  in  general,  were 

'  Thus  at  Worms  in  1023-25  "  si  [quis]  domum  in  civitate  vendiderit  aream 
perdat  "  (Keutgen,  Urkunden,  p.  57). 

^  Ibid.,  p.  58,  a.  1167  and  1178;  at  Berne  in  1218  there  were  areas  100  ft.  by  60  ft. 
{ibid.,  p.  126).     Cf.  the  bastides,  and  the  created  boroughs  of  England. 

'  Such  as  repair  of  the  streets.  At  times  the  city  got  only  a  third,  the  rest  was 
equally  wasted  on  the  civic  authorities  and  the  religiosi. 

*  Ibid.,  pp.  117-118,  a.  1120. 

^  Ibid.,  p.  133,  a.  1218. 

^  Ibid.,  p.  134,  a.  1 164.    Seven  fideles  were  the  holders  for  the  year  and  day. 

^  Ibid.,  p.  150,  a.  1213. 

^  Ibid.,  p.  157,  a.  1302. 

^  Ibid.,  p.  209,  a.  1221.  The  Archduke  took  any  property  if  the  heir  would  not 
live  in  Austria. 

'"  At  Freiburg  {ibid.,  pp.  ii8-ii9)an  escaped  felon's  house  was  torn  down; 
after  a  year  his  heir  might  rebuild  on  paying  a  fine.  At  Constance  failure  to  pay 
the  original  rent  entailed  forfeiture  to  the  city  (Keutgen,  Deutsche  Stadiverfassung, 
p.  125);   this  was  reclamation  for  breach  of  contract  rather  than  forfeiture. 

'1  Sale  was  free  at  Wetzlar  in  1180  (Keutgen,  Urkunden,  p.  59);  at  Freiburg  in 
1178  {ibid.,  p.  118)  one  might  sell  in  necessity.  The  custom  at  the  latter  city  was 
peculiar:  his  wife  living,  a  burgher  might  sell  "  quidquid  possidet";  his  wife 
dead,  only  with  his  children's  consent,  which  consent  was  not  valid  unless  they  were 
of  age  (12  years  at  Freiburg:  in  Germany  usually  12  to  15  years).  Sale,  however, 
was  allowed  at  any  time  on  the  seller's  swearing  that  he  had  '  legitimam  causam  ' 
{ibid.,  p.  120).  At  Berne  in  1218  one  might  sell  '  bona  in  allodiis  '  without  let 
{ibid.,  p.  131).  At  Cologne  as  early  as  1180  devise  was  free  for  at  least  a  part  of  the 
houses  (Keutgen,  Deutsche  Stadiverfassung,  p.  124). 


1 82  BURGAGE  TENURE  IN  ENGLAND 

more  varied  than  the  tenurial  customs  in  England  and  the  Nether- 
lands, and  formed  a  contrast,  as  sharp  as  is  possible  in  such  an 
institution,  to  the  artificial  rigidity  of  the  uniform  Norman  tenure. 
In  some  of  the  older  cities  especially,  where  there  was  much  ten- 
urial heterogeneity,  the  degree  of  freedom  of  transfer  was  not 
always  the  same  for  all  tenements.'  In  the  created  Stadte,  most 
of  which  were  founded  subsequent  to  the  eleventh  centur>', 
uniformity  of  tenurial  customs  was  the  rule,  the  only  incident 
of  the  tenure  being  an  infrequent  Ehrschalz  or  a  more  infrequent 
lord's  retrail} 

Of  the  four  regions  which  have  been  taken  as  illustrative,  the 
tenure,  as  a  whole,  was  undoubtedly  freest  in  Flanders  and  most 
restricted  in  Normandy,  where  rents  were  comparatively  high, 
where  alienation  fees  were  frequent  and  heavy,  where  retrait 
lignager  was  omnipresent  and  unavoidable,  and  where,  perhaps 
most  important  of  all.  there  was  no  devise.  The  tenure  in  Eng- 
land is  certainly  Hkcst  to  that  in  Germany;  each  has  the  same 
lights  and  shadows.  The  older  German  cities  afford  an  exact 
parallel  to  such  English  cities  as  London  and  Oxford,  where  there 
was  no  tenurial  burden  whatever  on  most  of  the  tenements  and  on  a 
comparative  few  only  the  small  fixed  rent;  while  in  both  England 
and  Germany,  contemporary  with  these  towns  of  tenurial  free- 
dom, there  were  boroughs  or  Stadte  where  the  lord  was  often  in 
evidence.      In  Normandy  at  an  early  date  the  common  law  of 

'  Deutsche  Sladtverjassung,  p.  126.  Strasburg  is  Dr.  Kcutgen's  most  important 
example.  Between  1285  and  1331  he  instances  transfers  by  the  lord  himself,  with 
his  consent,  and  without  it. 

It  seems  to  me,  however,  that  these  transfers  were  of  houses  only  and  that  the 
lord  was  the  lord  of  the  area  or  land.  In  I'ngland  the  land  might  have  one  lord 
and  the  house  another;   each  was  a  free  tenement. 

'  See  for  a  summary  of  conditions  in  such  towns  Keutgen's  Deutsche  Stadtvcr- 
Jassung,  p.  1 18.     The  rents  were  uniform  in  such  a  town. 

He  who  is  familiar  with  conditions  in  the  boroughs  is  so  accustomed  to  think 
of  the  fee-farm  rent  in  connection  with  feudal  freedom  in  Kngland  that  he  may 
look  for  it  in  the  larger  (lerman  and  Flemish  cities.  He  will,  however,  look  in  vain, 
for  a  grant  of  the  farm  in  fee  secured  not  tenurial  but  political  freedom,  which  was 
so  comi)lete  in  the  commercial  cities  of  Flanders  and  Germany  (there  is  no  need  to 
bring  the  Free  Cities  into  this  comparison)  that  a  grant  of  a  fee-farm  rent  would 
have  been  only  a  gift  of  part  of  what  they  already  had. 


ACCOMPANIMENTS  AND  COMPARISONS  1 83 

the  province  settled  the  customs  of  the  tenure  in  its  villes.  In 
Germany,  England,  and  the  Netherlands  the  older  and  more 
important  towns  or  boroughs  made  their  customs  to  suit  them- 
selves.^ Hence  the  early  fixedness  and  homogeneity  of  Norman 
urban  tenure;  hence  the  variety  and  progress  in  tenurial  customs 
elsewhere,  and  of  these  customs  the  most  important  and  last 
to  be  adopted  were  free  sale  and  free  devise. 

A  comprehensive  view  of  the  urban  landscape  in  our  four 
illustrative  regions  causes  minor  differences  to  sink  and  fade; 
its  most  prominent  feature,  or  lack  of  feature,  is  the  uniformity 
of  urban  tenure  everywhere  in  Teutonic  lands,  in  lands  where 
Teutons  predominated,  and  even  where  they  only  ruled.^  '  Giving 
of  laws  '  there  may  have  been,  often  not  the  freest  laws.  Com- 
merce may  have  carried  up  Rhine  or  Thames  many  an  idea  sprung 
from  Flemish  civic  legislation,  but  such  ideas  were  far  more  Hkely 
to  concern  and  affect  town  government  than  town  land  laws.  Let 
each  country  have  the  credit  of  its  own  tenurial  urban  institutions, 
in  which  the  same  conditions  produced  almost  the  same  results. 

Conclusion 

The  boroughs  in  which  the  tenure  was  affected  by  incidents 
of  feudalism  or  of  feudal  significance  have  been  previously  brought 
together.^  We  shall  now  and  in  Hke  manner  summarize  the 
boroughs  where  mobility  lay  under  greater  or  lesser  restriction 
and  those  where  it  was  unfettered.^  Small  fixed  alienation  fees 
were  due  the  town  at  Norwich,  Preston,  Chesterfield,  and  Here- 
ford. °  Fractional  fees  for  registration  were  charged  at  Sandwich, 
Romney  and  probably  aU  the  Cinque  Ports,  Beverley,  Northamp- 
ton, and  Maldon.^ 

^  Some  of  them  had  at  times  the  lord's  license  to  change  a  custom :  it  was  usually 
needless.     For  Normandy  see  Genestal,  La  Tenure  en  Bourgage,  pp.  235  et  seq. 

^  One  must  not,  however,  look  too  sharply  at  Normandy.  Our  comparison 
does  not  include  the  Scandinavian  lands. 

2  See  pp.  59  f. 

■*  The  order  of  the  following  lists  follows  in  general  the  order  of  treatment  in 
the  text. 

^  See  p.  127. 

^  Probably  small  charges  for  enrolling  deeds  were  made  in  all  important  boroughs. 


184  BURGAGE  TENURE  IN  ENGLAND 

The  limitation  of  the  kin's  preemption  applied  to  sale  in  Car- 
diff, Tewkesbury,  Preston,  Pembroke,  Wearmouth,  Northampton, 
Bury  Saint  Edmunds,  Portsmouth,  Dover,  Romney,and  probably 
all  the  Cinque  Ports,  Nottingham,  Derby,  Manchester,  Stockport, 
Salford,  Newcastle,  Lincoln,  York,  Beverley,  Dunwich,  Ipswich, 
Bath,  Morpeth,  Woodstock,  Alnwick,  and  all  the  Bretollian 
boroughs  of  Ireland,  as  Drogheda  and  Inistiogue.' 

Devise  of  either  sort  of  realty  was  unknown  in  the  Bretollian 
boroughs  of  Ireland  and  in  Barnstaple,  Cardiff,  and  Tewkesbury,'' 
and  was  allowed  only  when  there  was  no  heir  at  Manchester, 
Stockport,  and  Salford.  Devise  was  allowed  for  purchase  and 
forbidden  for  inheritance  at  Norwich,  Newcastle,  Nottingham, 
Ipswich,  Yarmouth,  Colchester,  Shrewsbury,  Rhuddlan,  Bury 
Saint  Edmunds,'  Dunwich,  Southampton,  Portsmouth,  and 
probably  at  Melcombe  Regis  and  Weymouth  and  also  all  the 
Cinque  Ports.* 

Sale  was  free  at  Gloucester,  Leicester,  Winchester,  Lynn, 
Bridport,  London,  Bristol,  Oxford,  Congleton,  possibly  at  Leeds 
and  Pontefract,  Castle  Rising,  Chard,  Hull,  W^ycombe,  Altring- 
ham,  Rhuddlan,  Dublin,  Cork,  Limerick,  Waterford,  Rathcool, 
Hereford,  Cambridge,  Norwich,  and  Scarborough.* 

Devise  was  free  at  London,  Oxford,  York,  Newcastle,  Congle- 
ton (probably),  Wycombe,  Hereford,  Bakewell,  Hull,  Chard, 
Scarborough,  Altringham,  Bridgnorth  (possibly),  Berwick,  Can- 
terbury, Cambridge,  Lynn,  Bristol,  Dublin,  Waterford,  Lim- 
erick, Cork,  Rathcool,  Hedon,  and  possibly  at  Bath  at  the  close 
of  the  mediaeval  period.* 

A  comparison  of  these  lists  with  those  of  towns  affected  to  any 
extent  by  feudal  incidents  ^  will  make  it  plain  that  the  boroughs 
of  greatest  tenurial  freedom  are  the  boroughs  of  the  low  and 
commonly  variable  landgable,  those  whose  history  began  and 

'  Sec  Restricted  Sale,  pp.  1 14-126. 

*  .And  probably  other  boroughs  in  PLngland  having  Norman  customs. 
'  Where  one-half  an  inheritance  might  be  willed. 

*  See  Restricted  Devise,  pp.  135-144. 
'  Sec  Free  Sale,  pp.  110-114. 

'  See  Free  Devise,  pp.  130-135. 
'  See  pp.  59  f. 


ACCOMPANIMENTS  AND  COMPARISONS  1 85 

whose  tenure  was  established  before  the  Franco-Norman  invasion 
from  over  the  narrow  sea. 

Such  was  burgage  tenure  in  England  in  the  middle  ages;  a 
tenure  which  in  the  older  boroughs  had  no  feature  of  feudalism, 
except  that  its  theory  of  land-holding  was  possession  and  not 
ownership.  The  burgess  and  the  nobleman  held  each  of  some 
lord ;  if  of  no  one  else,  then  of  the  king.  In  most  boroughs,  how- 
ever, the  payment  of  the  landgable  was  the  only  mark  of  this 
feudal  obhgation,^  while,  as  the  borough  grew,  the  number  of 
tenements  owing  this  rent,  and  the  value  of  the  rent  itself,  became 
relatively  so  small  that  in  some  towns  at  least  it  ceased  to  be 
paid  at  all.  For  those,  and  those  only,  who  paid  the  landgable 
there  was  a  slight  feudal  tinge  in  the  tenure.  However,  the 
boroughs  created  by  bishops  and  barons  ^  often  received  their 
tenure  burdened  with  a  few  of  the  feudal  incidents,  as  relief 
and  alienation  fees. 

Where  the  common  law  most  concerned  the  boroughs,  that  is, 
on  the  criminal  side,  it  was  compelled  to  recognize  the  facts  rather 
than  the  theory  of  burgage  tenure.^  In  the  country  at  large 
the  possessor  was  but  a  holder;  a  felon's  tenement,  save  for 
treason,  was  subject  only  to  year,  day,  and  waste.  In  the  greater 
boroughs  a  felon's  tenement  was  forfeited  to  the  king;  the  pos- 
sessor was  an  owner  in  regard  to  the  law,  in  fact  though  not 
in  form. 

Yet  all  through  the  middle  ages  the  tenurial  flexibility  of  the 
boroughs  had  no  effect  on  the  tenurial  rigidity  of  the  country, 
as  far  as  the  law  was  concerned.  The  act  of  1290,  known  as 
Quia  Emptores,  might  recognize  the  validity  of  sale,  but  those 
who  tried  to  devise  land  were  met  by  the  decision  that  burgage 

1  Except  the  oath  of  fealty  sworn  by  land-holders  and  non-landholders  alike  in 
the  middle  ages.  Even  payment  of  the  landgable,  which  was  collected  by  elected 
bailiffs  in  the  larger  towns,  was  very  impersonal. 

^  The  king  was  not  a  creator  of  boroughs,  Hull  and  Overton  excepted. 

'  Tenements  in  the  boroughs  were  held  under  customary  law,  subordinate  to 
(in  that  pleas  of  land  might  be  appealed  to  the  king's  court  on  error  or  for  default 
of  judgment)  rather  than  a  part  of  the  common  law.  In  such  cases  the  law  was 
declared  by  a  jury  of  burgesses  before  the  royal  justices.  The  Year  Books  and 
Plac.  Westmon.  Abbr.  afford  illustrations.     See  text,  p.  113,  note  6  et  pass. 


1 86  BURGAGE  TENURE  IN  ENGLAND 

tenure  obtained  in  boroughs  alone,  and  under  this  tenure  only 
might  land  be  devised.*  The  p>ersonal  and  political  effects  of 
holding  under  a  tenure  where  incidents  of  feudalism  fell  seldom 
and  those  of  villeinage  never,  and  where  a  feudal  lord  was  seldom 
or  never  in  evidence,  may  hardly  be  estimated.  Yet  though 
the  mediaeval  English  burgher,  to  judge  from  court  leet  records, 
seems  to  have  been  often  independent  to  the  point  of  unruliness, 
except  on  rare  occasions  he  cannot  be  said  to  have  taken  a  notable 
part  in  happenings  beyond  the  bounds  of  his  borough,  while 
his  leading  role  in  national  events  was  mainly  that  of  a  subject 
for   taxation. 

When  in  1540  the  Statute  of  Wills  freed  the  feudal  tenure  in 
part  and  the  socage  tenure  in  whole,  when  the  customary  land  law 
of  the  older  boroughs  had  become  the  common  law  of  England, 
probably  some  backward  boroughs  were  still  retaining  the  old 
Germanic  custom  of  the  kin's  retrait,  though  at  that  time  it  could 
have  been  little  more  than  a  nominal  impediment  to  mobility, 
except  in  so  far  as  it  alTectcd  devise.  From  1645,  when  the  Long 
Parliament  abolished  the  feudal  tenure  with  its  incidents,-  burg- 
age tenure  ceased  to  be  distinctive.''  After  that  date  the  only 
importance  of  holding  a  tenement  which  paid  a  chief  rent 
lay  in  the  fact  that  in  some  boroughs  its  holder  might  vote  in 
Parliamentary  elections.  The  Reform  Bill  of  1832  and  the 
Municipal  Corporations  Act  of  1835  virtually  ended  the  burgages 
with  whatever  they  stocxl  for;  only  enough  to  entail  a  vote  had 
commonly  retained  the  name,  and  even  that  was  worthless  now. 
A  few  chief  tenements  remain,  as  at  Cambridge  and  Doncastcr,^ 

'  Coke,  Commentary  iipoti  Littleton,  sec.  nob.  Sec  Elton,  Tenures  of  Kent, 
pp.  156-157.  The  term  burgage  was  sometimes  used  outside  a  borough,  but  in 
such  a  case  the  common  law  considered  the  tenure  as  socage.  This  did  not  apply 
to  a  part  of  a  borough  which  had  become  detached  from  the  main  borough. 

There  was  a  j)eriod  in  Henry  Ill's  reign  when  it  appeared  as  if  the  land  law  were 
about  to  recognize  devise  of  realty  held  under  both  feudal  and  socage  tenures,  but 
the  older  opinion  sjK'cdily  reasserted  itself. 

*  Keenacted  in  1660,  the  former  [)assage  having  been  held  null. 

^  Except  in  so  far  as  .some  rural  boroughs,  Ruthin  for  instance,  retained  relief 
or  heriot. 

*  At  least  this  was  the  case  in  1S42  and  1887  respectively,  the  dates  of  publica- 
tion of  Cooi)er's  and  Tomlinson's  Histories.     See  te.xt,  pp.  63,  157,  n.  2. 


ACCOMPANIMENTS  AND  COMPARISONS  1 87 

but  their  glory  has  departed  and  therewith  their  meaning.^  Our 
subject,  however,  ended  with  the  middle  ages;  the  full  develop- 
ment of  burgage  tenure  was  reached  before  their  close.  Its 
later  history  is  of  interest  mainly  to  the  student  of  the  Parlia- 
mentary franchise,  and  its  survival  until  our  own  day  to  the 
antiquarian. 

^  Unlike  heriot  on  copyhold  lands,  a  very  living  institution. 


APPENDIX 


APPENDIX 


URBAN  TENURE  IN  GERMANY 

In  the  text  ^  it  has  been  shown  by  a  fairly  numerous  list  of  illus- 
trations that  urban  tenure  in  England  was  best  comparable  with  that 
in  Germany,  In  the  following  pages  a  somewhat  more  extensive 
description  of  the  conditions  under  which  real  property  was  held  in 
the  German  cities  will  be  essayed.  No  pretence,  however,  will  be 
made  of  having  exhausted  the  subject  or  of  having  gone  deeply  into 
detail,  for  an  attempt  to  do  either  would  undoubtedly  lead  to  failure, 
partly  because  of  the  lack  of  sources  ^  within  reach,  but  mainly  on 
account  of  the  scope  and  comprehensiveness  of  this  or  indeed  any 
subject  relative  to  that  unfortuitous  concourse  of  sovereign  states 
known  as  mediaeval  Germany.^ 

In  addition,  what  was  previously  stated  concerning  a  few  of  the 
authors  of  modern  English  works  on  burghal  institutions,  that  they 
have  already  a  fair  idea  of  some  of  the  main  features  of  urban  tenure,^ 
is  true  to  a  much  greater  extent  of  the  German  writers  on  this  subject. 
This  may  be  the  chief  reason  why  these  German  writers  on  municipal 
origins  have  taken  so  much  for  granted  in  respect  to  familiarity 
with  urban  tenure  on  the  part  of  their  readers.  To  us,  however, 
it  seems  more  profitable  to  try  to  tell  what  Weichbild  ^  really  was  than 
to  waste  time  in  further  discussion  of  the  question  of  its  origin,  a 
question  now  fairly  well  settled  in  favor  of  the  advocates  of  a  free 
as  opposed  to  the  maintainers  of  a  domainial  beginning. 

1  See  pp.  178-183. 

2  The  sketch  in  the  text  above  (pp.  178-182)  on  the  urban  tenure  in  Germany 
is  taken  mainly  from  the  sources;  but  these  had  been  already  collected  by  Dr. 
Keutgen. 

^  To  this  must  be  added  a  personal  sense  of  inability  to  perform  such  a  huge 
task. 

*  See  pp.  3-6. 

*  As  before  stated,  this  term  is  much  wider  in  scope  than  urban  tenure;  it  means 
all  the  peculiar  customs  in  vogue  within  the  urban  jurisdiction,  the  tenure  being  one  - 
of  these. 

191 


192  APPENDIX 

The  secondary  literature  which  is  more  or  less  relevant  to  our 
subject  has  already  been  briefly  described ;  *  the  source  material 
germane  thereto  follows  to  a  great  extent  the  same  lines  as  that  bear- 
ing on  the  tenure  in  England.  One  kind  of  source  material  however 
is,  of  course,  almost  completely  lacking,  that  which  is  contained  in 
the  records  of  a  strong  and  all-pervading  central  government.  If, 
therefore,  there  cannot  be  found  much  material  in  respect  to  a  town 
in  its  own  or  other  local  archives,  such  is  not  likely  to  be  found  any- 
where. The  subject-matter  for  this  short  essay  has  been  obtained 
largely  from  German  local  histories  and  collections  of  town  records. 
The  former  differ  from  their  prototypes  in  England  in  that  they  are 
written  as  a  rule  by  more  scholarly  men,  though  the  sketchy  super- 
ficial town  history  is  no  stranger  on  library  shelves  even  in  Germany; 
the  latter  are  nearly  always  ably  edited.'^  In  addition  to  these  local 
histories  and  town  records,  as  well  as  other  sources  which  will  appear 
in  the  footnotes,  much  information  can  be  obtained  from  Heinrich 
Gottfried  Gengler's  Deutsche  Stadtrechts-Alterthiimer  (Erlangen,  1882), 
and  particularly  from  Deutsche  Stadtrechte  des  Mittelalters  (new  ed., 
Nuremberg,  1866),  by  the  same  author,  and  a  small  amount  from  the 
first  and  third  volumes  of  Georg  Ludwig  von  Maurer's  Geschichte 
der  Stddteverfassung  in  Deutschland  (Erlangen,  1869-71). 

In  the  following  brief  description  of  the  tenure  the  order  of  treat- 
ment will  be  in  general  that  used  in  the  text;  first  the  feudal  names 
and  feudal  features,  and  next  the  degree  of  mobility  in  sale  or  devise 
or  any  manner  of  alienation.  It  should  not  be  overlooked  that  the 
rigidity  or  flexibility  of  the  town  land  law  was,  as  in  England,  a  matter 
which  lay  with  the  burghers  themselves.' 

'  See  pp.  7  f. 

'  With  no  invidious  motive  it  seems  fitting  to  mention  with  highest  praise  the 
Vrkundenbuch  der  Stadt  Strassburg  (Slrasburg,  1879-1900,  7  vols.)  as  illustrative 
of  careful  and  able  editing.  The  editor  of  the  third  volume,  Privatrcchtliche  L'rkun- 
den  und  Amislisten  von  1266  bis  Ijj2  (1884),  which  is  quoted  below,  is  Dr.  .Moys 
Schultc,  whose  introduction  also  is  une.xcelled. 

Sometimes,  however,  the  English  local  historian's  stupidity  is  more  profitable 
to  an  investigator  than  the  German  historian's  perspicacity,  the  former  often  pub- 
lishing material  which  he  neither  understands  nor  incoqjorates,  and  which  often 
has  no  bearing  on  his  theme,  but  which  a  student  of  municiinil  institutions  fre- 
quently finds  of  value. 

'  Of  rents  and  values  of  realty  in  the  German  towns  so  much  has  been  written 
during  the  last  half  century  that  this  feature  will  be  omitted  here,  except  for  a  brief 
discussion  of  original  rents. 


APPENDIX  193 

The  Incidents  of  Weichbild 

Had  tenements  held  under  Weichbild  been  subject  to  the  aids,  the 
well-known  warlike  character  of  the  German  aristocracy  would  surely 
have  caused  some  trace  to  be  left  of  the  aid  for  knighting  or  for  ran- 
som; at  least  a  demand  for  such  would  probably  have  been  recorded 
in  town  archives;  but  in  Germany  as  in  England  ^  the  aids  seem  to 
have  been  so  completely  imknown  that  the  Stadtrechte  did  not  even 
chronicle  exemption. 

In  respect  to  marriage  the  case  is  slightly  different,  not  that  urban 
tenure  was  subject  to  this  incident,  but  that  the  burghers'  ^  freedom 
therefrom  was  sometimes  made  a  matter  of  record,  as  at  Vienna, 
Mimich,^  and  a  few  other  towns.  As  in  England,  the  Stadtrechte  of 
the  larger  towns  ignored  the  matter.* 

Feudal  Wardship,  the  natural  concomitant  of  marriage,  was  likewise 
imknown,  for  the  German  towns  had  a  custom  of  their  own,  which, 
like  the  corresponding  burghal  custom  in  England,  might  vary  as  to 
minor  matters  in  different  towns.  ^ 

Relief  was  a  comparatively  infrequent  incident,  small  in  amoimt, 
and  often  remitted  to  direct  heirs.  This  incident,  foimd  in  created 
towns  only  as  a  riile,  is  seldom  mentioned  in  the  Stadtrechte. 

Heriot  was  a  much  commoner  incident  in  German  towns  than  in 
EngUsh  boroughs.  It  was  never  confused  with  rehef,  after  the  fashion 
of  Manchester  and  a  few  other  places  where  the  heriot  existed  in 
England.  In  the  Stddte  heriot  was  never  the  best  chattel  which  the 
lord  took  from  his  villein,  but  was  even  more  military  in  scope,  though 
not  in  nature,  than  the  sword  or  lance  which  was  the  usual  English 
rendering.^     The  heriot  of  the  German  city  was  nearly  always  some 

^  Castle  Rising  excepted. 

-  The  burgher  was  a  freeholder.  Tenants  at  will  or  for  years  were  not  burghers. 
See  W.  Arnold,  Verfassungsgeschichte  der  deutschen  Freistddie  (Hamburg,  etc.,  1854), 
pp.  240  et  seq. 

2  Von  Maurer,  Geschichte  der  Stddteverfassung,  i,  p.  390. 

*  In  some  Stadtrechte  there  are  sections  which  state  that  marriage  is  free  or  is  not 
free.  This  does  not  refer  to  any  incident  but  only  to  the  effect  which  a  Burgerin's 
marriage  with  a  '  foreigner  '  may  have  on  her  civic  standing;  it  may  also  refer  to 
unequal  marriage  within  the  town.  At  Vienna  and  Heimburg,  for  instance,  a 
Biirgerin  who  married  a  king's  official  or  a  knight  lost  her  '  Freiheit  und  Vermogen.' 
In  the  later  middle  ages  this  rule  fell  into  disuse.  See  von  Maurer,  Geschichte  der 
Stddteverfassung,  i,  pp.  389-390. 

*  See  Arnold,  Geschichte  des  Eigentums,  p.  132  et  pass. 

^  Some  of  the  charters  state  that  there  shall  be  no  heriot  in  the  base  sense. 
See  von  Maurer,  Geschichte  der  Stddteverfassung,  i,  p.  391;  Gengler,  Deutsche  Stadl- 


194  APPENDIX 

sort  of  arms;  horses  were  included,  sometimes  best  horses,  though  not 
in  the  best  head  sense.  The  Henvede,^  which  recurs  so  often  in  the 
Stadtrechte,  was  always  warlike  in  nature,  but  its  destination  varied 
in  time  and  place.  At  an  early  period  this  payment  of  arms  and  horses 
at  a  burgher's  death  went  to  the  lord  of  the  town.  He  might  and 
often  did  grant  his  right  to  the  burghers.^  However  the  towns  got 
it,  whether  by  grant  or  usurpation,  after  the  thirteenth  century  no 
lord  might  take  heriot.  The  incident  itself  remained  unchanged  in 
nature,  but  became  that  portion  of  an  inheritance  which  must  go  to 
the  direct  heir,  if  he  lived  within  the  town,  and  was  a  matter  whose 
regulation  lay  within  the  townsmen's  jurisdiction:  in  this  sense  it  was 
a  restriction  on  devise  of  chattels  rather  than  an  incident  of  the  tenure. 
In  the  last  stage  the  custom  was  abolished  or  became  meaning- 
less ; '  its  significance  ceased  as  commerce  grew  and  military  needs 
decreased. 

In  a  small  number  of  cities,  the  Stadtrechte  or  the  charters  do  not 
state  that  heriot  was  not  rendered  to  a  lord.  Such  is  the  case  at 
tjlzen,''  Verden,^  Werl,^  Wernigerode,'  Medebach,**  Grossen-Salze,^ 
Prenzlau,'"  and  other  towns  of  about  the  same  relative  importance, 
and  originally  more  or  less  of  the  nature  of  garrisons."  In  some  towns 
the  lord  could  get  his  arms  and  horses  only  when  there  were  no  heirs. '^ 
Commonly  the  claims  of  extra-burghal  heirs  must  give  place  to  those 

rechte,  p.  206.  In  a  town  {Sladt)  raised  from  the  status  of  a  village  (Dorf)  the 
charter  commonly  stated  that  heriot  in  the  sense  of  '  best  head  '  or  '  best  chattel  ' 
was  thereby  abolished. 

'  Ilergruathe  und  Gerade  {Gcrathe,  Rathe,  etc.),  the  latter  a  contribution  of  cloth- 
ing by  a  Burgerin,  were  often  coupled. 

*  As  at  Cosfeld,  where  the  lord,  who  was  bishop  of  Miinster,  gave  the  right  to 
take  heriot  to  the  townsmen:  Franz  Darpc,  Coesf elder  Urktmdenbuch  (Cosfeld, 
1900-08),  i,  p.  30,  a.  1306. 

*  Von  Maurer,  Gcschichte  der  Stddlcvcrfassung,  i,  p.  427. 

*  Gengler,  Deutsche  Stadtrechte,  p.  497,  a.  1270. 
'  Ibid.,  p.  508,  a.  1330. 

'  Ibid.,  p.  520,  a.  1346. 
^  Ibid.,  p.  521. 

*  Ibid.,  p.  286.  Heriot  was  less  militar>'  here  than  in  most  towns.  There  was 
relief  also. 

»  Ibid.,  p.  173,  a.  1473. 

'»  Ibid.,  p.  361.  a.  i486. 

"  See  ibid.,  p.  394,  Salzwedel;  ibid.,  p.  343,  Parchim,  a.  12 18  {Ilerwede 
and  W'iberade);  ibid.,  p.  270,  Liineburg;  Llincn  (in  the  'Red  BcKjk '),  p.  272; 
Herford,  p.  195;   Horde,  p.  199;   Stendal,  p.  460. 

'^  Escheat  of  chattels  as  it  were. 


APPENDIX  195 

of  heirs  within  the  town.^  Many  places  agreed  only  in  making  no 
provision  in  the  lord's  favor;  the  ultimate  destination  of  the  heriot 
was  variable,  as  at  Stade,^  Ingolstadt,^  Naumburg/  Dresden,^  Cleves,® 
and  Hanover.^ 

From  these  examples  heriot  seems  to  have  been  a  commoner  inci- 
dent in  the  German  cities  than  in  the  English  boroughs,  and,  while 
the  same  in  nature  and  origin,  to  have  imdergone  greater  change, 
ceasing  to  be  taken  by  a  lord,  but  remaining  long  as  an  inalienable 
and  undevisable  chattel,  and  therefore  almost  constituting  a  part  of 
the  tenement.^  Cosfeld  a£fords  an  illustration  of  what  probably 
happened  in  many  small  towns;  the  lord  resigned  his  right  to  heriot 
to  the  burghers,  who  did  not  abolish  the  incident,  but  at  once  added 
a  clause  to  their  Stadtrecht  forbidding  separation  of  Herwede  and  tene- 
ment. In  Germany  as  in  England,  the  military  character  of  heriot 
and  its  antiquity  show  its  connection  with  free  and  ante-feudal  tenure.^ 

Escheat.  As  would  be  expected,  this  incident  was  subject  to  more 
varying  conditions  in  German  than  in  English  cities,  on  account 
of  the  greater  degree  of  autonomy  attained  by  many  of  the  former. 
At  an  early  period,  and  in  many  towns  all  through  our  period,  escheat 
was  probably  the  lord's  undisputed  prerogative.  When,  however, 
the  age  of  written  records  began,  whatever  the  course  of  escheat  may 
once  have  been  it  did  not  run  lordward.     Von  Maurer  is  no  doubt  quite 

*  At  Schwaney  to  wit  the  Stadtrecht  provided  that  Herwede  '  shall  be  given  to 
no  one  outside  the  town  as  long  as  any  one  of  the  blood  shall  be  left  within  the  town.' 
If  no  intra-burghal  heir  appeared  the  Herwede  was  held  subject  to  any  heir's  claim 
for  a  year  and  six  weeks.  In  the  absence  of  any  claim  it  went  to  the  lord 
(Gengler,  Deutsche  Stadtrechte,  p.  420),  probably  the  lord  of  the  tenement,  who, 
in  small  created  towns,  was  usually  the  lord  of  the  town. 

^  Gengler,  Stadtrechte,  p.  457. 

'  Ibid.,  p.  214.     None  but  a  dweller  in  the  town  might  take  heriot. 

*  Ibid.,  p.  310.  No  burgher  might  take  heriot.  Who  might  then  ?  The  lord 
of  the  town  ? 

^  Otto  Richter,  Verjassungs-  tind  V erwaltungsgeschichte  der  Stadt  Dresden  (Dres- 
den, 1885-91),  i,  p.  315:   "  hergewette  .  .  .  sail  yn  der  stat  bleiben." 

^  Gengler,  Stadtrechte,  p.  64 :  heriot  must  remain  with  the  tenement.  The  same 
rule  held  at  Cosfeld. 

'  Ibid.,  p.  187:  same  custom  as  at  Naumburg. 

*  That  heriot  seems  to  have  been  considered  almost  inseparable  from  the  tene- 
ment is  shown  by  the  custom  at  Brakel  where  "  herwede  und  gerade,  wenner  de 
bynnen  Brakell  verfallen,  und  neen  erue  uth  der  rechten  linien  dartho  nagelaten 
weret  .  .  .  herwede  und  gerade  nicht  de  Rait  [Rat]  to  Brakell,  sunder  der  neyste 
erue  van  dem  blode  hebben  "  (Gengler,  Stadtrechte,  p.  35). 

"  Or  rather  its  origin  in  a  period  before  the  systemization  of  feudalism. 


196  APPENDIX 

right  in  stating  that  this  incident  was  the  lord's  till  the  towns  gained 
the  right  thereto.^ 

In  towns  of  the  older  custom,  where  escheat  was  the  lord's,  Lipp- 
stadt  and  Cleves  illustrate  the  usual  procedure.  The  town  council 
held  the  tenement  a  year  and  a  day  ^  to  await  an  heir.  If  one  did 
not  appear,  the  property  went  to  the  lord.^  At  Schwerin  escheat 
was  apparently  the  lord's  when  there  failed  an  heir  within  the  seventh 
degree.''  At  Freiburg-im-Breisgau  the  lord  had  only  part  of  an  es- 
cheat: he  (the  duke)  retained  a  third,  the  poor  and  the  city  divided 
the  rest  equally.^  At  Grech  an  escheat  was  shared  equally  by  the 
city,  the  poor,  and  the  religiosi;  ^  at  Padberg  it  lay  with  the  town 
council  to  say  whether  the  city,  the  poor,  or  the  religiosi  should  have 
the  whole  escheat.^ 

Forfeiture.  The  custom  in  respect  to  forfeiture  was  even  more 
variable  than  that  regarding  escheat.  At  Holzminden  the  house  of 
a  felon  who  had  fled  might  go  to  his  heirs  if  his  defalcation  or  the 
damage  he  had  done  were  made  good;  at  times  the  court  might  decide 
that  no  such  compensation  need  be  made.^  At  Wesel  no  citizen's 
heredity  might  be  '  wasted  '  for  any  crime;  *  at  Padberg,  whether  a 

'  Geschichte  der  Stadleverfassung,  iii,  pp.  367-368. 

*  And  the  Ilerwede  (if  such  existed)  joined  thereto  a  year  and  six  weeks. 

'  Gcngler.  Stadtrechte,  pp.  256  and  64.  This  was  much  the  same  as  the  English 
procedure. 

*  See  ibid.,  p.  433,  a.  1224.  The  tenement  was  held  the  usual  year  and  day. 
No  heir  appearing,  "  mit  sovener  Hand  wedderum  werdcn  verreket." 

At  Ffullendorf  in  1220  there  was  what  may  be  called  escheat  for  breach  of 
contract;  the  lord  took  his  area  from  him  who  would  not  build  thereon  within  a 
specified  time,  usually  a  year  from  St.  Michael's  (September  29).  At  Altenburg 
in  1256  he  who  let  his  land  lie  fresh  (deserlam)  a  year  and  a  day  lost  it  to  the  lord 
(Gengler,  Stadtrechte,  pp.  356-357). 

*  E.  T.  Gaupp,  tJber  Deutsche  Stadlegriinding,  Sladtverjassung,  und  Weichbild  im 
Millelaltcr  (Jena,  1824),  pp.  204,  393.  See  also  Gcngler,  Stadtrechte,  p.  125.  This 
was  early  in  the  twelfth  century,  the  duke  may  later  have  lost  his  share. 

*  Gcngler,  Stadtrechte,  p.  170,  a.  1242. 
^  Ibid.,  p.  341,  a.  1290. 

At  Hielcfcld  and  at  Kheda  a  tenement  which  had  come  to  a  lord,  probably  by  way 
of  escheat,  must  be  sold  to  a  townsman  within  a  year  and  a  day  (von  Maurer, 
Geschichte  der  Stddteverfassung,  i,  p.  392).  The  same  compulsory  sale  within  the 
same  period  existed  at  Frankfort  for  tenements  which  had  been  obtained  as  '  Seel- 
gerette  '  (ibid.,  i,  p.  400,  a.  1318). 

*  Gengler,  Stadtrechte,  p.  206,  a.  1245.  In  other  circumstances  it  seems  that  a 
felon's  tenement  was  sold  and  the  proceeds  used  to  pay  for  the  damage  he  had 
done. 

'  Ibid.,  p.  523,  a.  1277. 


APPENDIX  197 

felon  fled  or  was  hanged,  the  heir  received  his  tenement.^  At  Ratisbon 
in  the  eleventh  century  and  at  Freiburg-im-Breisgau  ^  a  felon's  house 
was  torn  down;  at  the  latter  city  his  heir  might  rebuild  after  a  year 
had  passed  on  payment  of  6d.  to  the  lord  of  the  city.  At  Breisach 
a  fleeing  felon's  house  was  wasted  and  all  his  chattels  went  to  the 
Emperor ;  his  heir  might  rebuild  after  the  lapse  of  a  year  on  payment 
of  three  pounds  to  the  judges  and  ten  pounds  to  the  Emperor.^  At 
Strasburg  waste  was  the  same,  but  the  city  took  the  forfeiture,  though 
this  might  be  avoided  if  the  felon  could  pay  an  amend  and  also  make 
compensation.*  The  courses  of  escheat  and  forfeiture  in  the  German 
towns  show  well  how  the  absence  of  a  strong  central  government 
affected  the  tenure.  In  England  the  king  usurped  the  rights  of 
other  lords  to  forfeiture  and  often  to  escheat.  In  Germany  the  towns, 
if  the  smaller  places  be  excluded,  acted  as  the  English  king;  they 
commonly  controlled  forfeiture  and  often  took  escheats. 

Fealty.  In  a  few  of  the  German  cities  this  incident  was  a  Uttle 
more  complicated  than  in  the  English  boroughs.  As  a  rule,  however, 
the  burgess  and  the  Burger  took  the  same  sort  of  oath;  each  swore 
to  be  faithful  to  the  lord  of  the  borough  or  Stddt  and  to  its  customs.^ 
At  Dattenried  the  burghers  swore  fealty  to  the  king  and  the  abbot, ^ 
at  Passau  the  burgess-oath  might  have  been  taken,  so  like  is  it,  from 
an  English  customal;  ^  at  Kahla  the  burghers  swore  fealty  to  the  lord, 
who  in  turn  swore  confirmation  of  the  town  privileges.^  At  Selz 
fealty  was  owed  to  the  abbot,  at  Gehrden  to  the  praepositus,^  at  Brakel 

'  Gengler,  Stadtrechte,  p.  341,  a.  1298. 

At  Minden,  if  '  bona  '  included  the  tenement,  the  rule  was  the  same  in  the 
latter  contingency:  "  si  aliquis  [burgensis]  furatur  et  suspenditur,  ejus  uxor  et  sui 
pueri  .  .  .  bona  sua  integraliter  obtinebunt."  R.  Doebner,  Die  Stadtepriviligien 
Herzog  Otto  des  Kindes  (Hanover,  1882),  p.  32,  a.  1300. 

^  Gengler,  Stadtrechte,  p.  126.  '  Ibid.,  p.  42,  a.  1275. 

*  Georg  Winter,  Geschichte  des  Rathes  in  Strassburg  (Breslau,  1878),  p.  41. 
Most  of  these  records  refer  to  an  abjuring  felon's  tenements. 

*  In  some  of  the  German  cities  the  oath  was  to  the  king,  the  lord,  and  the  town. 
In  the  boroughs  the  oath  was  to  the  lord  of  the  town  and  the  town  itself.  As  the 
king  was  lord  of  all  the  important  boroughs  fealty  was  thus  usually  due  to  the  king 
and  the  town.  See  von  Maurer,  Geschichte  der  Stddteverfassung,  iii,  pp.  368-369, 
in  respect  to  this  oath  to  be  faithful  to  the  king  as  head  of  the  state  (or  as  the  state) 
and  to  the  lord  of  the  city. 

^  Gengler,  Stadtrechte,  p.  78. 

'  Alexander  Erhard,  Geschichte  der  Stadt  Passau  (Passau,  1862),  i,  p.  176. 
^  H.  Bergner,  Urkunden  zur  Geschichte  der  Stadt  Kahla  (Kahla,  1899),  pp.  21-22, 
o.  143 1. 

'  As  the  lord's  deputy  ? 


198  APPENDIX 

to  the  lord  of  the  town.*  At  Cologne  the  burgomasters  swore  a  sort 
of  fealty  in  a  peculiar  way;  one  burgomaster  put  the  oath  to  the 
other,  who  took  it  in  the  name  of  the  council  and  the  community.^ 
On  the  whole  burghal  fealty  in  Germany  was  much  the  same  as  in 
England,  a  burgess-oath  and  not  a  feudal  obligation. 

Retrait  FSodal  existed  in  a  small  number  of  towns,  most  of  which 
were  abbatial,  though  in  some  instances  it  affected  the  alienation  of 
only  a  few  of  the  tenements,  as  at  Strasburg.^  At  Wiirzburg  there 
were  many  sales  where  the  abbot  and  monks  not  only  had  the  right 
of  preemption  but  the  right  of  consent  to  alienation  as  well.*  In  a 
few  towns  the  lord's  consent  to  sale  seems  to  have  been  necessary  in 
all  cases;  this  was  the  condition  at  Kahla  even  as  late  as  the  fifteenth 
century.^  At  Rappoltstein  in  Alsace  transfers  were  made  with  the 
lord's  consent,  which  he  seems  never  to  have  withheld,  and  even 
through  the  lord  as  an  intermediary;   his  services  were  gratuitous.* 

*  Von  Maurer,  Slddtcverfassiing,  iii,  p.  280.  At  Bregenz  "  die  Burger  .  .  . 
musste  ihren  Grundhcrrn  schworen,"  at  Basel  all  who  held  tenements  paying 
original  rents  {zinspflichtige)  must  swear  fealty  to  the  lords  to  whom  such  rents 
were  due  {ihrem  Lehens-  odcr  Zinsherrn  huldigen).  If  this  were  the  case  others 
than  the  lord  of  the  town  (at  Basel  the  abbot  was  lord)  must  have  received  fealty. 
It  seems  odd  that  Arnold  in  his  exhaustive  Geschichtc  des  Eigentums  should  have 
omitted  to  note  this;  if  true,  burghers  must  often  have  sworn  fealty  to  each  other, 
a  meaningless  performance.  Such  a  proceeding  would  have  more  significance  if 
the  chief  lord  of  a  tenement  were  an  aristocratic  burghal  holder  or  groundlord. 

*  Von  Maurer,  Geschichtc  der  Stadteverfassuvg,  iii,  p.  464.  This  fealty  to  the 
archbishop  of  ('ologne  was  sworn  Ln  much  the  same  way  as  fealty  at  Weymouth, 
whose  lord  was  the  prior  of  St.  Swithin's  at  Winchester  (see  p.  47  alK)\e).  In  each 
case  it  was  rather  the  taking  of  an  oath  of  ofi'ice  than  swearing  burghal  fealty, 
which  at  Cologne  existed  side  by  side  therewith  (see  Keutgen,  I'rkuudoi,  p.  71). 

'  I'rkuiidenbuch  dcr  Siadt  Strassburg,  i,  p.  459,  a.  1266.  See  a.ho  ibid.,  iii,  introd., 
p.  xlii,  where  this  preemption  by  a  lord  is  noted  and  stated  not  to  have  been  a  city 
custom. 

*  S.  Rictschcl,  in  Zcitschrift  der  Savigny-Stifliiug  fiir  Rcchtsgcschichlc,  xxii,  p.  222. 
In  most  of  the  recorded  instances  of  sale,  however,  there  is  no  word  of  permission. 

Many  cases  can  be  quoted  of  sale  with  a  lord's,  that  is  a  superior  holder's,  consent. 
These,  however,  are  only  instances  of  transfer  where  an  o[ilion  on  a  tenement  has 
been  inserted  as  a  clause  in  a  contract.  In  fact  such  cases  prove  not  the  presence 
but  the  absence  of  the  lord's  right  to  first  purchase. 

'II.  Bergncr,  I'rkuudcn  zur  Gcsrhichle  dcr  Stadt  Kahla,  ]ip.  22,  28,  32.  Frederick 
and  Sigmund,  dukes  of  Saxonj-,  lords  of  the  town,  often  figure  in  the  records  as 
consenting  to  sales  of  tenements. 

*  Karl  Albrecht,  Rappollsteinischcs  Urkiiudciibuch  (Colmar,  1891-98),  i,  p.  401 
et  pass.  The  usual  entry  runs  "...  cin  burger  .  .  .  und  ...  sin  cliche  wirtin 
.  .  .  bezeichncn  .  .  .  Ilerrn  von  dcr  Oberstadt  (or  der  Xiederstadt)  als  Siegler 


APPENDIX  199 

It  appears,  therefore,  that  retrait  feodal  in  Germany  was  the  same  as 
in  England,  an  infrequent  incident  due  sometimes  to  the  lord  of  the 
town  and  sometimes  to  the  lord  of  the  fee. 

In  some  of  the  created  German  cities,  as  Hagenau,  there  was  a 
modified  form  of  gtte,  which,  however,  no  ordinary  lord  might  demand. 
The  Emperor  had  the  right  to  quarters  for  himself  and  his  retinue 
when  passing  through  the  city,  but  there  must  be  no  detriment  done 
the  citizens.^ 

The  foregoing  evidence,  which,  though  scanty,  is  fairly  representa- 
tive, shows  that  the  tenure  in  the  cities  of  Germany  was  affected  by 
the  feudal  incidents  in  nearly  the  same  proportion  as  the  tenure  in 
the  boroughs  of  England,  the  only  important  variation  being  the 
destination  of  escheats  and  forfeitures  in  some  of  the  greater  German 
cities.  In  Germany  as  in  England  what  little  of  feudalism  there  was 
is  found  chiefly  in  the  smaller  and  created  cities;  the  disabilities 
under  which  the  tenure  in  the  larger  cities  sometimes  lay  were  im- 
posed by  the  citizens  themselves. 

Ground  Rents 

In  respect  to  ground  rents  figures  are  not  so  easily  obtainable  as 
in  England.  As  in  every  country  in  feudal  Europe,  there  were  towns 
whose  free  tenure  no  charter  created  and  towns  where  free  tenure  was 
a  gift  from  some  lord.  Of  those  of  the  latter  sort  some  may  have 
been  raised,  or  have  raised  themselves,  from  a  state  of  unfreedom, 
and  many  were  founded  as  garrison  towns.^  In  the  cities  of  the  last 
class  the  '  areas '  were  equal  and  bore  equal  rents:  each  area  was 
commonly  accompanied  by  a  varying  quantity  of  land  in  the  common 
fields,^  whose  rent  was  sometimes  included  in  the  rent  of  the  area, 

der  Urkunde,  durch  welche  sie  erklaren,"  etc.  Viewed  in  another  way  this  was 
only  a  means  of  securing  registration  of  deeds. 

^  K.  W.  Nitzsch,  Minister ialitdt  und  BUrgerthum  im  11.  und  12.  Jahrhundert 
(Leipsic,  1859),  p.  328.  King  Philip  renounced  this  privilege  at  Spires  {ibid.,  p.  334). 

Of  base  or  villein  service  there  is  no  trace,  except  that  at  a  very  early  period 
many  of  the  burghers  of  Strasburg  were  required  to  work  a  few  days  in  the  year 
for  the  lord;  a  certain  number  of  each  trade  or  handicraft  were  exempted  (H.  H.  T. 
Horn,  Die  Anfdnge  der  Strassburger  Stadtverfassung  (Rostock,  1868),  p.  34,  note  3). 
Possibly  a  few  other  towns  once  had  the  same  custom.     Cf.  Hereford,  T.  R.  E. 

2  In  Germany  this  founding  of  free  cities  or  towns  was  very  much  earlier  than 
in  Wales  and  in  Ireland. 

^  Cf.  the  Welsh  and  Irish  boroughs.     See  pp.  96,  n.  3,  99. 


200  APPENDIX 

and  sometimes  separate  from  it.*  In  the  older  towns  the  ground  rent 
was  variable,  as  in  England  and  the  Netheriands.  In  towns  of  creation 
it  was  the  same  for  each  tenement  and  was  commonly  a  shilling  or 
some  fraction  thereof,  as  in  Normandy  and  Ireland.  Whether  vari- 
able or  uniform  this  rent  lay  on  the  ground  alone.  This  was  origi- 
nally the  case  in  many  of  the  EngUsh  boroughs,  but  there  land  and 
house  became  connected  in  nature;  both  might  be,  and  commonly 
were  transferred  as  a  unit.  In  the  German  cities  when  land  and 
house  were  transferred  to  the  same  person  each  was  usually  specified,' 
and  in  the  older  cities  each  often  had  its  own  low  quit-rent  or  fee- farm 
rent.' 

^  6d.  an  acre  at  Warburg  (F.  Philippi,  Zur  Verfassungsgeschichte  der  wesl- 
fdlischen  Bischofsstadle,  p.  37,  note  82) ;  2d.  at  Padberg  (Gengler,  Stadlrechle,  p.  340). 

*  For  instance,  at  Ulm  in  1285  there  was  a  grant  of  a  house,  which  paid  a  pound 
of  wax,  and  an  "  aream  subjacentem  "  which  paid  a  pound  of  pennies  and  four  hens 
(F.  Pressel,  Ulmisches  Urkundenbuch,  i,  p.  182). 

'  Original  rents  in  some  of  the  German  cities  were: 

Erfurt,  2d.  (E.  M.  Lambert,  Die  altere  Geschichte  und  Verfassung  der  Stadt  Erfurt, 
p.  122,  a.  1256). 

Freiburg-  im-  Breisgau,  lad.  (E.  T.  Gaupp,  Deutsche  Stadtegriinding,  pp.  192,  388). 

Garz,  \  mark  silver  (Freiderich  von  Dreger,  Codex  Pomeraniae  Diplotnaticus 
(Berlin,  1768),  p.  199,  a.  1240). 

Grevenmachem,  i4d.  and  a  capon  at  Christmas  (Gengler,  Stadtrechte,  p.  171, 
a.  1252). 

Halle,  6d.  (Gaupp,  Deutsche  Stadtegrundung,  p.  192,  note  19). 

Hamm,  4d.  (Gengler,  Stadtrechte,  p.  185,  a.  12 13). 

Holzhagen,  i2d.  {Codex  Pom.  Dipl.,  p.  461,  a.  1262):  "  de  quolibet  manso 
unum  solidum  denariorum." 

Konigsberg,  about  i  mark  (M.  Perlbach,  QueUen-Beitrdge  zur  Geschichte  der 
Stadt  Konigsberg  im  Miltelalter  (Gottingen,  1878),  p.  2,  a.  1299);  the  rent  was  a 
haXi-Jcrto  (fcrto,  or  fertol  =  i  mark)  for  each  virga  (26J  ft.)  in  width  of  an  area  4 
virgas  long;  an  area  longer  than  this  paid  a.ferto  for  each  virga  of  width. 

Munster,  a.  11 78,  sJd.  for  each  area  (F.  Philippi,  Zur  Verfassungsgeschichte 
der  westfalische  Bischofsstddte,  p.  20).  This  rent  was  neither  increased  nor  lessened 
on  account  of  division  or  new  houses;  Mansio  there  often  meant  house  (Gengler, 
Stadtrechte,  p.  377). 

Padberg,  6d.  and  one  '  pullus  '  for  each  area  and  3d.  for  each  half-area  (Gengler, 
Stadtrechte,  p.  340,  a.  1290). 

Prcnzlau,  \  mark  {Codex  Pom.  Dipt.,  p.  167):  "dequovis  manso  fcrto  dimidius." 

Stargard,  i^  mark  silver  {ibid.,  p.  240,  a.  1243):  the  rent  of  each  '  mansus  ' 
was  '  tres  lotones  argenti,'  one  loto  =  /«  mark  silver,  about  a  shilling. 

Ulm,  1 2d.  {Gcn^,leT,  Stadtrechte,  p.  503,  a.  1296):  if  the  lord  neither  came  nor 
sent  for  this  rent  on  the  day  it  fell  due  it  need  not  be  paid  for  that  year.  (For 
rents  not  original  at  Ulm  see  F.  Pressel,  Ulmisches  Urkundenbuch,  i,  p.  157, 
a.  1279-80.) 


APPENDIX  20 1 

Most  of  these  rents  of  areas  or  of  houses  disappeared  in  process  of 
time,  as  their  insignificance  made  them  not  worth  collecting.  As 
there  was  not  the  same  political  value  attached  to  original  rents  in 
the  German  cities  as  in  some  of  the  English  boroughs  their  lapse  was 
even  earlier  in  Germany  than  in  England.  A  few  still  remain,^ 
though  even  they  may  soon  be  overborne  and  trampled  in  material 
dust  by  the  march  of  modern  German  industrialism. 

Mobility 

Alienation  fees  in  the  German  cities  were  much  the  same  as  those 
in  the  English  boroughs.  They  were  usually  low,  varied  from  place 
to  place,  and  were  paid  sometimes  to  a  lord,  but  oftener  to  the  com- 
mimity  through  its  ojS&cials.^  At  Strasburg  the  alienation  fee,^  or 
Ehrschatz,  was  sometimes  paid  to  the  lord  by  the  grantee.*  At  most 
places  .however  the  Ehrschatz,  when  it  existed,  was  due  the  com- 
munity. At  Zabem,^  Schwaney,®  Eisenach,^  and  Lechnich  ^  it  was 
fixed,  though  it  varied  slightly  in  the  different  towns.  More  com- 
monly the  fee  was  proportional  to  the  value  of  the  tenement  and 
was  expressed  as  a  fraction  of  the  selling  price  or  the  rent.  This 
was  the  case  at  Wesel,^  Gehrden,^"  Soest,  Medebach,^^  and  Beckum.^^ 

1  See  von  Maurer,  Geschkhte  der  Stadteverfassung,  i,  p.  399. 

2  Cf.  Normandy,  where  the  usual  ahenation  fee  (treizieme)  was  high,  uniform, 
and  invariably  due  a  lord. 

^  '  Sellings,'  sometimes  '  cate  '  in  England. 

*  Urkundenbuch  der  Stadt  Slrassburg,  iii,  introd. ,  p.  xlii.  The  lord  was  the  receiver, 
but  it  seems  that  he  had  to  bargain  over  his  fee.  See  ibid.,  p.  2,3  for  an  illustration 
where  the  contract  called  for  the  payment  of  the  Ehrschatz  and  also  secured  a  right 
of  first  purchase  to  the  grantor. 

*  Dagobert  Fischer,  Geschichte  der  Stadt  Zabern  (Zabern,  1874),  p.  142.  4d.  to 
the  town  officials  "  zu  gezugniss,  und  soil  der  Winkauff  sein  xvi  d." 

^  Gengler,  Stadtrechte,  p.  420,  i2d. 

^  F.  Philippi,  Ztir  V erf assuftgs geschichte  der  westfdlischen  Bischofsstddte  (Osna- 
briick,  1894),  p.  101,  a.  1283.  The  grantor  gave  i2d.  to  the  Vogt,  the  grantee  6d. 
to  the  Schoffen. 

*  Gengler,  Stadtrechte,  p.  242,  a.  1279.  The  fee  was  4d.;  it  seems  to  have  been 
due  only  when  an  inherited  tenement  was  sold  to  a  newcomer.     Cf.  Preston. 

'  Ibid.,  p.  525.  Due  when  *  domus  et  area  '  (house  and  lot)  were  sold:  the 
fee  was  1 2d.  for  each  penny  of  rent. 

^°  Ibid.,  p.  145.  2d.  in  each  mark  of  purchase.  It  was  called  the  '  Vorhiire  ' 
and  seems  to  have  been  due  only  when  an  inherited  tenement  was  sold. 

"  Ibid.,  p.  283 :  twice  a  year's  rent,  paid  by  grantee. 

^^  F.  Philippi,  Zur  V erf assungsgeschichte  der  westfdlischen  Bischofsstddte,  pp.  22-23, 
ante  1 245 ;  paid  by  both  grantor  and  grantee.  Leave  to  sell  must  also  be  obtained 
from  the  Rdthmanner.     Cf.  Dublin. 


202  APPENDIX 

These  illustrations  show  a  remarkable  resemblence  between  alien- 
ation fees  in  the  cities  of  Germany  and  those  in  the  boroughs  of  Eng- 
land. In  each  country  at  a  few  towns  of  no  importance  fixed  alien- 
ation fees  were  paid  to  a  lord;  in  a  greater  nimiber  the  fees,  commonly 
fractional,  were  paid  the  town.  A  shilling  for  each  penny  of  rent 
leaves  one  in  uncertainty  as  to  the  amount  of  the  fee,  but  twopence 
in  each  mark  of  purchase,  one-eightieth  of  the  price,  reminds  one 
strongly  of  the  proportional  fee  in  the  Cinque  Ports  and  some  Flemish 
towns,  while  fourpence  *  zu  Gezeugniss  '  and  sixteen  pence  for  *  Wein- 
kauf '  call  to  mind  like  customs  in  Hereford  and  Beverley.^ 

Free  Sale.  It  is  in  connection  with  sale  and  devise  that  the  term 
'  mobility  '  conveys  its  fullest  meaning.  Following  the  order  of  the 
text  with  reference  to  the  presence  or  absence  of  the  kin's  preemption 
we  turn  first  to  the  cities  where  sale  was  free.  Before  considering 
these  in  detail  it  should  be  premised  that  the  kin's  retrail  would  lose 
more  than  half  its  meaning  in  those  towns,  of  which,  however,  there 
were  very  few,  where  land  was  the  only  realty,  the  house  being  con- 
sidered a  chattel  and  not  attached  to  the  land. 

At  Stade  sale  was  free  to  one  class  of  holders,  the  lords  of  the  'areas.'* 
At  Kiel  ^  and  Spires  *  inheritance  might  be  sold.  Possibly  sale  was 
free  at  Bodenwerder;  ^  there  was  no  restriction  thereon  at  Eisenach,® 
and  very  probably  none  at  Stralsund.^     Inheritance  might  possibly 

'  Registration  fees  are  frequently  noted,  as  at  Cologne  (1258),  Landsberg, 
Magdeburg,  Munich,  and  other  towns;  they  were  sometimes  called  Vrkundspjen- 
nige.  At  Cologne,  for  instance,  the  Vogl  got  i2d.,  the  ScJwJfcn  i  pi.  each,  the  beadle 
2  pf. 

2  Gcngler,  Stadrechte,  p.  457:  the  kin's  preemption  was  customary  in  respect 
to  sale  of  an  inheritance  "  nisi  forte  dominus  areae  earn  vendiderit  in  propria 
persona." 

^  G.  Homeycr,  Die  Stadtbikher  des  Mittdaltcrs  (Berlin,  i860),  p.  41,  a.  1264-89: 
'  hcreditas  *  might  be  sold.  The  same  author  says  that  this  was  the  case  at  Wismar 
{ibid.,  p.  35);   he  is  very  likely  wrong. 

*  .'\.  lliigard,  i'rktoiden  zur  Gcscliichle  dcr  Stadl  Spcycr  {SiTdsburg,  i&S$),  p.  192: 
'  iure  hereditario  habenda.'  Many  sales  are  recorded  as  '  ex  successione  paterna.' 
Sec  also  vcjn  Maurer,  Geschichte  der  Stddteverfassung,  iii,  p.  568. 

'  Gengier,  Stadtrcchte,  p.  28,  a.  1287:  "  si  civis  vendere  voluerit  domuni  suam 
et  recederc,  imjjcdiat  nullus  eum  ";   this  may  refer  to  an  alienation  fee. 

'  Ibid.,  p.  101,  a.  1283. 

^  Fredcrik  l'"abricius,  Das  iiltcstc  Stnihundischc  Stadtbuch  (Berlin,  1872),  p.  107, 
a.  1300.  Our  doubt  of  absolute  freedom  arises  from  the  fact  that  infrequently 
consent  to  sale  occurs  in  a  grant  of  an  heredity.  This  consent,  however,  appears 
to  have  Ijeen  given  only  when  a  minor's  property,  which  was  of  course  inherited, 
was  sold;   those  who  consented  were  probably  guardians.     In  one  grant  of  1287 


APPENDIX  203 

be  sold  freely  at  Brunswick,^  at  Gehrden,^  and  probably  at  Heilbronn.' 
Sale  was  free  at  Rotenburg,^  and  possibly  at  Lechnich,^  Frauenburg,® 
and  Worms7  Inheritance  might  be  freely  sold  at  Colmar;  ^  at 
Hildesheim  ^  and  Zuzenhausen  ^^  its  alienation  was  hampered  merely 
by  formalities. 

certain  burghers  promised  the  grantee  to  secure  her  from  damage  if  a  '  propior 
heres  '  should  claim  within  year  and  day  (ibid.,  p.  67):  in  another  grant  is  a 
record  of  a  brother's  consent.  The  many  grants  of  heredities  (ibid.,  pp.  4-165) 
contain  no  record  of  heir's  consent,  and  heirs  there  must  often  have  been. 

'  Ludwig  Hanselmann,  Urkundenbuch  der  Stadt  Braunschweig  (Brunswick, 
1862-1912),  ii,  p.  224,  c.  1300:  "  Swe  so  ein  erve  koft,  de  sal  komen  vor  den  voget," 

*  kaufen  '  probably  for  '  verkaufen,'  why  should  an  heir  qua  heir  come  before 
bailiff  or  steward  when  he  bought  ?  In  1306  an  inherited  house  was  sold  (ibid., 
ii,  p.  297).     But  see  Brunswick  under  Restricted  Sale,  p.  204. 

2  Gengler,  Stadtrechte,  p.  145,  a.  13 19. 

^  Carl  Jager,  Geschichte  der  Stadt  Heilbronn  (Heilbronn,  1828),  p.  125,  a.  13 19. 
An  estate  was  sold  by  the  heirs;  they  may,  however,  have  had  no  heirs  of  their  own. 

*  J.  D.  W.  von  Winterbach,  Geschichte  der  Stadt  Rothenburg  an  der  Tauber 
(Rothenburg,  1826-27),  i;  PP-  62-63,  o-  1336:  "  vom  H.  von  I.  ihres  Vaters  Theil 
des  Burgsassen  .  .  .  kaufte."  H.  W.  Bensen,  Historische  Untersuchungen  uber 
die  ehemalige  Reichstadt  Rotenburg,  p.  99:  "  So  konnte  man  z.  B.  ein  Haus  als 
Eigenthum  ganz  nebst  einem  Theil  des  Erbes  davon  verkaufen." 

^  Gengler,  Stadtrechte,  p.  243,  a.  1279.  -^  newcomer  must  pay  a  fee  on  taking  up 
an  heredity,  which  most  probably  he  had  bought;  newcomers  were  not  likely  to  be 
heirs  of  tenements  within  the  town.     See  Lechnich,  under  Restricted  Sale,  p.  205. 

^  Gengler,  Stadtrechte,  p.  571,  a.  1318.    The  town  is  said  to  have  had  free  sale 

*  as  at  Liibeck.'  In  each  place  the  Stadtrechl  has  little  to  say  in  respect  to  sale 
though  much  as  regards  the  law  of  inheritance.  Rents,  grants  of  which  were  com- 
monly subject  to  the  same  limitation  as  grants  of  realty,  were  alienable  at  Liibeck 
in  1240;  at  Goslar,  in  1390,  the  freedom  being  then  granted  by  the  Emperor  Wen- 
ceslaus.     See  G.  Homeyer,  Stadtbiicher  des  Mittelalters,  p.  55. 

^  Heinrich  Boos,  Urkundenbuch  der  Stadt  Worms  (Berlin,  1886-93),  vol.  ii. 
Records  and  grants  of  rents  and  tenements  a.  1301-1400  (the  period  covered  by  this 
volume)  have  no  trace  of  any  restriction  on  sale. 

*  T.  F.  X.  Hunkler,  Geschichte  der  Stadt  Colmar  (Colmar,  1838),  p.  41.  The  age 
of  majority  for  witnessing  was  12  years,  for  selling  inheritance  15  years.  Cf.  how- 
ever, Gengler,  Stadtrechte,  p.  74,  Colmar,  a.  1278:  "  mit  der  selben  kinte  willen, 
ob  si  ziren  tagen  comen  sint." 

'  Richard  Dobner,  Urkundenbuch  der  Stadt  Hildesheim  (Hildesheim,  1881- 
1901),  i,  p.  105:  "  Si  aliquis  .  .  .  habet  pueros  quos  ab  hereditate  sua  vult  aut 
debet  separare,  hoc  erit  coram  consulibus." 

^°  J.  P.  Glock,  "  Burg,  Stadt,  und  Dorf  "  Zuzenhatisen  (n.  p.,  [1896],  privately 
printed),  p.  26.  See  also  G.  L.  von  Maurer,  Geschichte  der  Stddteverfassung,  iii, 
p.  568.  At  Zuzenhausen  the  consent  of  the  Elector  Palatine  was  necessary;  at 
Spires  sale  of  inheritance  must  be  made  before  the  Chamberlain's  court.  Sale  of 
purchase  was  before  the  ordinary  town  court. 


204  APPENDIX 

Restricted  Sale.  This  topic,  except  as  it  concerns  comparatively 
few  and  unimportant  impediments  to  mobility,  such  as  consent  by 
the  town  council,  is  mainly  a  matter  of  the  kin's  preemption.  Where 
this  feature  of  the  ancient  land  law  was  recognized  by  a  Stadtrechte 
there  can  be  no  question  that  the  sale  was  restricted,  unless  later 
records  in  respect  to  grants  should  show  that  an  early  custom  had  been 
set  aside  by  the  necessities  of  commerce.  Evidence  for  such  change  in 
the  law  must  be  ample  and  strong. 

Purchase  alone  was  freely  alienable  at  Augsburg,^  Gelnhausen,* 
and  Quedlinburg.^  At  Stade,*  Attendom,^  Passau,®  Hanover,^  Pesth,^ 
Strasburg,^  and  probably  at  Erfurt  and  Frankfort  ^^  inheritance 
might  not  be  sold  without  the  heirs'  consent.  The  urban  land 
law   was  also  the  same  at  Brunswick,^^  Hamburg,^*  tjlzen,^'  Din- 

'  K.  W.  Nitzsch,  Minislerialital  und  Burgerthum,  p.  289,  nth  century. 

*  Gengler,  Stadtrechte,  p.  146,  12th  century. 

'  Stadtrecht  von  Quedlinburg,  in  G.  Homeyer's  Stadtbiicher  des  Mittelalters,  p.  54, 
14th  century. 

*  Gengler,  Stadtrechte,  p.  457,  a.  1209.  Only  a  '  dominus  areae  '  might  sell 
freely.  In  this  and  other  Stadtrechte  the  usual  formula  is  that  he  '  who  has  quiet 
possession  of  an  heredity  for  a  year  and  a  day  is  the  most  favored  person  in  respect 
to  holding  the  same,'  from  which  the  presence  of  the  kin's  preemption  is  to  be 
inferred.  The  expression  may  also  be  used  in  connection  with  possession  in  general 
in  towns  from  whose  land  law  the  kin's  relrail  had  disapjjeared. 

^  Ibid.,  p.  13,  a.  1222.  '  Bona  hereditaria  '  might  not  be  sold  except  to  a  towns- 
man. This  may  refer  only  to  inherited  chattels,  in  which  case  there  is  no  question 
as  regards  preemption. 

®  Ibid.,  p.  344,  a.  1225.        ^  Ibid.,  p.  186,  a.  1241.        *  Ibid.,  p.  354,  a.  1244. 

*  Urkundenbtich  der  Stadt  Strassburg,  i,  p.  451,  a.  1265,  and  iii,  p.  66,  a.  1287: 
heirs  consented  to  sale. 

'"  E.  M.  Lambert,  Die  dltcre  Geschichte  und  Verfassung  der  Stadt  Erfurt  (Halle, 
1868),  pp.  122-123,  0-  1261:  a  tenement  "  in  deren  Besitz  der  Verkaufer  pcrson- 
lich  nicht  gesetzt  ist  "  might  be  sold  or  alienated  in  any  way  in  spite  of  heirs. 
This  would  not  affect  the  lowest  holder  or  his  heirs  in  any  way. 

Restriction  seems  to  have  been  the  rule,  to  judge  from  communications  between 
Frankfort  and  Erfurt  and  from  a  provision  in  the  Stadtrecht  forbidding  sale  in 
mortmain,  but  allowing  a  burgher  to  sell  "  que  de  iurc  vendere  fxitcrit  "  {ibid., 

PP-  136-137)- 

"  R.  Doebner,  Stadtcprivilcgieii  Ilerzog  Otto  des  Kindcs,  p.  31,  a.  1240-52.  See 
Brunswick  under  Ercc  Sale,  where  it  should  apparently  stay.  This  evidence  for 
restriction  is  much  earlier  than  the  evidence  for  freedom. 

"  J.  C.  Gries,  Die  Ilamburgischcn  Stadt-  Erbe-  und  Kente-Bikher  (Hamburg,  183c), 
p.  15,  a.  1270,  1292,  1497.  Inheritance  was  often  sold  at  Hamburg  though  only 
when  guarantors  against  damage  by  ejectment  could  be  obtained.  These  could 
not  prevent  ouster  of  possession  by  an  heir,  but  as  it  were  underwrote  the  buyer 
against  disturbance  of  possession  within  year  and  day. 

"  Gengler,  Stadtrechte,  p.  497,  a.  1270. 


APPENDIX  205 

golfing/  Uberlingen,^  and  probably  at  Lechnich.^  The  kin's  preemp- 
tion probably  existed  at  Wismar  *  and  at  Bamberg,^  and  certainly  at 
Bremen,^  Verden/  Neuburg,^  Naumburg,^  Cosfeld/"  Rottweil/^  Hiis- 
sen/2  apparently  at  Radolfzell/^  Duderstadt,"  Dattenried/^  and  at 
Zabern.^^  At  Ratisbon  ^^  and  at  Munich  ^*  only  purchase  was  alien- 
able without  consent. 

^  Christian  Haeutle,  Einige  alibayerische  Stadtrechte  (Munich,  1889-92),  i,  p.  54, 
a.  1274.     No  one  might  consent  for  a  minor  heir;  sale  waited  on  age  of  majority. 

2  Martin  Gerbert,  Codex  Epistolaris  Rudolphi  I  (typis  San-Blasianis,  1772), 
p.  229,  a.  1275:  "  volumus  .  .  .  quod  nemo  civium  civitatis  praedictae  .  .  . 
in  hereditate  succedat  ahcui  .  .  .  nisi  heres  proximior."  This  may  refer  to  the  law 
of  succession  only  but  implies  also  the  presence  of  the  kin's  preemption. 

^  Gengler,  Stadtrechte,  p.  242.  The  evidence  for  restriction  at  Lechnich  pre- 
ponderates. 

*  Ibid.,  p.  551,  a.  1323:  no  one  might  sell  an  heredity. 

One  or  two  instances  of  towns  may  be  found,  with  qualifying  statements  ap- 
pended, in  each  list.  Restriction  in  such  is  commonly  taken  from  an  old  Stadtrechte, 
freedom  from  a  local  Urkundenbuch. 

^  Ibid.,  p.  17,  a.  1326. 

®  D.  R.  Ehmck  and  W.  von  Bippen,  Bremisches  Urkmtdenbuch  (Bremen,  1873- 
1902),  ii,  p.  304,  a.  1329. 

^  Gengler,  Stadtrechte,  p.  509,  a.  1330.  At  Verden  year  and  day  were  said  to 
mean  "  dre  Daghe  ses  Weken  un  en  Jar." 

*  Haeutle,  Einige  altbayerische  Stadtrechte,  i,  p.  90,  a.  1332. 
9  Gengler,  Stadtrechte,  p.  309,  a.  1337. 

"  F.  Darpe,  Coesf elder  Urkundenbicch,  i,  p.  43,  a.  1341.  Heirs  consented  to  sale 
of  a  rent. 

11  Heinrich  Giinter,  Urkundenbuch  der  Sladt  Rottweil,  im  Wiirttembergische 
Geschichtsqtiellen,  iii  (1896),  pp.  85,  106,  a.  1341.  Even  '  Eigengiitlein  '  were 
sold  with  the  son's  consent. 

*2  Gengler,  Stadtrechte,  p.  208,  a.  1348. 

^^  Urkunden  der  Stadt  Radolfzell  (Radolfzell,  1878),  p.  5,  a.  1401.  The  recorded 
grants,  many  of  which  are  grants  by  widows  to  the  convent,  are  not  conclusive. 
There  are  many  records  of  grants  in  which  no  consent  was  noted;  all  may  be  of 
purchase. 

"  Gengler,  Stadtrechte,  p.  93.  '*  Ibid.,  p.  78,  a.  1358. 

^®  D.  Fischer,  Geschichte  der  Stadt  Zabern,  p.  142,  a.  1489.  Two  weeks'  notice  of 
sale  must  be  given.     Cf.  Northampton. 

At  Beckum  the  Rathmdtmer's  consent  was  needed  for  alienation  (Philippi,  Zur 
Verfassungsgeschichte  der  westfdlischen  Bischofsstddte,  p.  24). 

"  Gengler,  Stadtrechte,  p.  375. 

^*  Franz  Auer,  Das  Stadtrecht  von  Miinchen  (Munich,  1840),  Einleitung,  p.  cxxxi: 
ewige  Gilt  and  Eigenthum  were  subject  to  year  and  day.    See  also  ibid.,  pp.  15-16. 

Von  Maurer,  Geschichte  der  Stddteverfassttng,  i,  p.  423,  notes  the  presence  of 
the  kin's  preemption  in  Liibeck,  Bremen,  Hamburg,  and  a  few  other  towns.  See 
also  ibid.,  pp.  424-425. 


2o6  APPENDIX 

The  number  of  towns  in  this  list  of  restriction  is  about  twice  that  in 
the  list  of  freedom.  However,  many  important  cities  in  the  valley 
of  the  Rhine  do  not  appear  in  either  list,  while  most  of  the  records 
on  which  this  conclusion  in  respect  to  sale  in  the  German  towns  is 
based  are  of  earlier  date  than  corresponding  records  in  the  English 
boroughs,  where  the  fourteenth  and  fifteenth  centuries  often  saw  the 
land  law  modified  to  greater  freedom.  Yet  when  all  has  been  said, 
it  is  apparent  that  the  land  law  of  the  English  customals  shows  greater 
flexibility  in  the  matter  of  sale  than  that  of  the  German  Stadtrechte, 
even  the  Stadtrechte  of  the  commercial  cities  of  the  Hanse.  Such  at 
least  was  the  case  as  far  as  concerns  the  letter  of  the  law. 

Looking  further  into  this  question  of  restriction,  at  a  glance  one  sees 
in  the  cities  of  Germany  the  same  method  of  bending  a  theoretically 
rigid  land  law  as  in  the  English  boroughs.  The  German  burgher  sold 
*  in  necessity  '  in  exactly  the  same  way,  and  no  doubt  swore  with  quite 
as  much  truth  in  his  oath  before  the  town  magistrates,  as  if  he  had 
lived  in  Northampton  and  not  in  Naumburg.  Indeed  he  seems  to 
have  a  prior  claim  to  the  invention  of  this  simple  legal  fiction,  sale 
in  need  being  a  matter  of  record  in  Germany  early  in  the  twelfth 
century.  From  that  time  its  use  in  towns  where  the  kin's  preemption 
remained  in  force  was  so  wide-spread  that  at  the  close  of  our  period 
it  was  a  general  feature  of  the  urban  land  law.^ 

Free  Devise.  In  the  matter  of  devise  the  disproportion  between 
the  respective  numbers  of  towns  of  freedom  and  restriction  was  even 
greater  than  in  the  matter  of  sale:  mobility  was  less  complete  in  the 
German  cities  than  in  the  English  boroughs.  At  Kiel  devise  seems  to 
have  been  free;^     at  Stralsund  the  balance  of  the  evidence  inclines 

'  Some  of  the  towns  which  embodied  this  provision  in  their  Stadtrechte  were 
Freiburj^-im-Breisgau  (Genglcr,  Stadtrechte,  p.  127,  a.  1120);  (k'lnhausen  {ibid., 
p.  146,  (7.  1 169);  Quedlinburg  (G.  Homeyer,  Stadthikhcr  des  Mittelaltcrs,  p.  54, 
Stadtrecht  von  Quedlinburg,  13th  century);  Passau  (A.  Erhard,  Geschichle  der 
Sladt  Passau,  pp.  1 12-1 13,  a.  1299) — one  might  sell  "  wegcn  hiiuslicher  Not" 
and  get  judicial  protection  if  the  heir  objected;  Wiirzburg  (S.  Rietschcl,  in  Zeil- 
schrifl  der  Savigny-Stiftung  fiir  Rechtsgcschichle,  xxii  (1901),  p.  222);  Schwaney 
(Genglcr,  Stadtrechte,  p.  420);  Naumburg  {ibid.,  p.  309,  a.  1337)  — a  father  might 
sell  in  need  and  keep  two-thirds  of  the  price  received,  "  und  den  kinden  den  dritten 
pfennig  dar  abe  ghebe  ";  V'erden  {ibid.,  p.  509,  a.  1330)  —  '  need  '  must  be  de- 
clared before  the  Rat. 

2  Homeyer,  Stadtbiicher,  p.  41,  c.  a.  1250.  The  evidence  is  from  a  record  of 
devise. 


APPENDIX  207 

toward  liberty.^  Devise  was  possibly  free  at  Weida,^  at  Jerichow,' 
and  at  Troppau."*  In  many  of  the  Stadtrechte  the  prohibition  to 
devise  inheritance  seems  to  apply  only  to  cases  where  heirs  of  the 
body  were  Uving;  more  distant  relations  might  be  excluded  by  a 
will.5 

Restricted  Devise.  At  Grech  ^  neither  sort  of  realty  might  be  de- 
vised. Purchased  tenements  alone  were  devisable  at  Pesth/  Diessen- 
hofen,*  tJberlingen,^  Friedrichshafen/"  and  probably  at  Spires  ^^  and 

^  Fabricius,  Das  dlteste  Stralsundische  Stadtbuch,  pp.  50-56,  a.  1279-88.  Inheri- 
tance was  devised  in  several  cases.  The  records  may  refer  to  chattels  but  probably 
most  of  them  refer  to  tenements.  One  devisor  {ibid.,  p.  56)  gave  his  eldest  son  80 
marks;  to  his  wife  and  another  son  "  dedit  hereditatem  suam  integram."  The 
reference  is  probably  to  chattels.  In  1 288-1300  a  brother  consented  to  devise  of 
an  heredity  {ibid.,  p.  93);  the  executors  were  sureties  in  case  an  heir  should  claim 
within  year  and  day.  It  seems  probable  that  we  have  here  a  case  of  a  child  whose 
whereabouts  and  even  existence  were  unknown,  and  to  whom  the  father  wished 
his  land  to  go  if  alive.  Otherwise  the  brother  would  have  been  heir;  the  tenement 
was  not  willed  to  him.  See  also /Z'/i.,  p.  124.(1.  1303  for  devise  of  inheritance. 
Fractions  of  heredities  were  also  devised,  ibid.,  pp.  117,  121.  On  the  other  hand, 
see  Gengler,  Stadtrechte,  p.  471,  a.  1353  (Stralsund). 

^  Gengler,  Stadtrechte,  p.  515,  a.  1377.  The  burghers  had  permission  to  devise 
'  Outer  ';  possibly  hereditary  chattels  were  meant. 

^  Ibid.,  p.  209,  a.  1336,  —  '  children  might  be  disinherited  ';  the  reference  may 
be  to  chattels  alone. 

*  Ibid.,  p.  491,  a.  1464.     Permission  was  given  to  devise  realty. 

^  See  ibid.,  p.  210,  c.  a.  1250,  Iglau.  The  law  of  that  town  was  that  if  a 
burgher  died  leaving  neither  \vife,  nor  child,  nor  will,  the  next  heir  should  succeed. 
There  seems  no  need  for  such  a  rule  if  devise  were  restricted,  unless  the  clause 
applied  to  purchase  alone. 

Ulm  may  have  been  a  town  of  free  devise;  its  records  contain  many  wills  in 
kinsmen's  favor.  The  tenements  devised,  however,  may  all  have  been  '  purchase.' 
See  Friedrich  Pressel,  Ulmisches  Urkundenbuch  (i,  Stuttgart,  1873),  P-  291  et  pass. 

^  Gengler,  Stadtrechte,  p.  170,  a.  1242.  I  have  found  no  other  town  where 
purchase  was  undevisable. 

^  Ibid.,  p.  334,  a.  1244. 

*  Ibid.,  p.  80,  a.  1260:  *  the  heirs  shall  have  heredity.' 

*  Ibid.,  p.  495,  a.  1275.  ^^  Ibid.,  pp.  141-142,  a.  1275. 

"  A.  Hilgard,  Urkunden  der  Stadt  Speyer,  pp.  179,  240-241,  a.  1304,  13 17.  In 
the  one  case  husband  and  wife  devised  their  whole  estate  each  to  the  other,  subject 
'  juxta  jus  et  consuetudinem  civitatis  Spirensis  "  to  a  forfeit  of  400  marks  in  case 
a  nearer  heir  appeared.  The  second  case  was  similar,  the  forfeit  provided  being 
100  marks  of  silver.  Cf.  London,  where  a  husband  might  not  devise  realty  to  his 
wife  for  a  term  beyond  her  life. 

Yet  in  1334,  a  Biirgerin  ('  iungvrowe  ')  of  Spires,  Katherine  Swenin,  devised 
a  house  {ibid.,  p.  380).  It  could  hardly  have  been  other  than  inheritance;  a  J^mg- 
frau  is  not  usually  in  the  market,  at  least  the  market  for  real  estate. 


208  APPENDIX 

Lucerne.^  At  Landshut  a  tenement  might  be  devised  only  in  the 
absence  of  a  direct  heir.''  At  Ulm '  and  Bruk  *  devise  was  limited  to 
tenements  of  purchase. 

It  is  in  connection  with  sale  and  devise  that  the  land  laws  of  the 
German  cities  and  the  English  boroughs  dififer  most.  The  basis  of 
this  difference  seems  to  lie  on  a  distinction  between  the  legal  nature 
of  area  or  land  and  that  of  domus  or  house.  In  England  each  was  a 
burgage  tenement,  and  though  each  might  be,  and  in  the  later  middle 
ages  often  was,  separately  alienated  and  separately  held,  the  legal 
character  and  the  degree  of  alienability  were  the  same  for  each.  In 
Germany,  though  the  house  was  seldom  considered  a  chattel,^  some- 
thing of  the  chattel  nature  seems  to  have  pertained  to  it;  it  was  held 
in  less  reverence  than  the  land;  it  was  more  of  an  object  of  commerce, 
and  was  often  more  freely  alienable  than  the  area  on  which  it  stood. 
Fluid  as  realty  in  the  German  cities  might  be,  England  was  eminently 
the  land  of  free  sale,  and  preeminently  the  land  of  free  devise. 

'  Gengler,  Stadtrechle,  p.  274,  a.  1252.  In  this  as  in  many  other  Sladlrechte 
the  statement  that  the  '  nearest  heir  shall  have  heredity  '  may  refer  to  intestacy 
only. 

^  Ibid,,  p.  236,  a.  1 241.  This  refers  probably  to  inheritance;  it  allows  devise 
to  those  "  die  nicht  kind  hieten  und  auch  erben  liessen." 

*  Gustav  Veesenmeyer  and  Hugo  Bazing,  Ulmisches  Urkundenbuch  (ii,  i,  Ulm, 
1898),  p.  224,  a.  1341.  A  tenement  was  devised  to  a  convent  "  es  ware  denn,  dass 
sie  Leibeserben  hinterlassen,"  though  this  may  be  only  a  conditional  clause  in  favor 
of  a  future  or  an  absent  heir. 

*  Gengler,  Stadtrechle,  p.  58,  a.  1296.  A  deceased  burgher's  house  went  to  his 
heir  "  als  von  alter  ist  herkhomen  ";  this  may  refer  to  intestacy  only.  Probably 
Cleves  should  be  added  to  this  list:  see  ibid.,  p.  64. 

*  The  houses  in  created  towns  may  sometimes  so  have  been  considered. 


BIBLIOGRAPHY 


BIBLIOGRAPHY 

This  list  contains  the  more  important  authorities  mentioned  in  the 
footnotes,  with,  in  some  instances,  a  fuller  statement  of  title.  It 
does  not  purport  to  be  a  complete  record  of  all  the  works  consulted. 
Unless  it  is  otherwise  stated,  London  is  to  be  understood  as  the  place 
of  pubHcation  for  the  English  books  here  cited.  Since  the  writers 
who  have  treated  directly  of  the  burgage  tenure  are  few,  I  have,  con- 
trary to  the  usual  bibliographical  practice,  and  purely  as  a  matter  of 
convenience,  grouped  their  writings  at  the  beginning.  These  secon- 
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single  alphabetical  list.  A  brief  account  both  of  the  sources  and  of 
the  secondary  works  may  be  foimd  above,  pp.  5-10. 

Secondary  Works 
(a)  For  the  Tenure  in  England 

Bateson,  Mary.    Borough  Customs.    Edited  for  the  Selden  Society.     1904- 

06.     2  vols. 
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78, 302-318, 496-523,  754-757;  xvi,  pp.  92-110, 332-345- 
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relating  to  the  History  of  the  Town  of  Cambridge.     Cambridge,  1 898. 
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Municipal  Corporations  of  the  United  Kingdom.     1835.     3  vols. 
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2  vols. 

{b)  For  the  Tenure  in  the  Netherlands,  Germany,  and  Parts  of  France 

Arnold,  Wilhelm.     Zur  Geschichte  des  Eigentums  in  den  deutschen  Stddten. 

Mit  Urkunden.     Basel,  1861. 
Curie  Seimbres,  Alcide.      Essai  sur  les  Villes  fondees  dans  le  Sud-Ouest 

de  la  France  aux  XI  IP  et  XIV^  Siecles  sous  le  Nom  Generique  de  B  as  tides. 

Toulouse,  1880. 
Des  Marez,  Guillaume.      Etude  sur  la  Propriete  Fonciere  dans  les  Villes 

du  Moyen-A ge,  et  specialement  en  Flandre.     Ghent,  etc. ,  1 898. 
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dans  les  Villes  Normands.     Paris,  1900. 


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Keutgen,  Friedrich.  U titer suchungen  iiber  den  Ursprung  der  deutschen 
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Legras,  Henri.  Le  Bourgage  de  Caen:  Tenure  d  Cens  et  Tenure  d  Rente 
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Allen,  John.    History  of  the  Borough  of  Liskeard.    London,  etc.,  1836. 

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Baker,  J.  B.     The  History  of  Scarborough.     1882. 

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Bateson,  Mary,  editor.  Records  of  the  Borough  of  Leicester,  iioj-ijOQ. 
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INDEX 


INDEX 


Accumulation  of  burgages,  148-152;  in 
Germany,  179. 

Acton  Bumell,  Statute  of  Merchants  of, 
iii,n.  2. 

Adam  the  Fleming,  26,  n.  3. 

Agardsley,  61,  67,  73,  n.  7,  96,  n.  3,  164, 
n.  I. 

Aids,  the,  11  f.;  in  Normandy,  172;  in 
Germany,  193;  ransom,  11;  knight- 
ing, II  f.,  59;  marrying,  11  f.,  59. 

Albemarle,  honor  of,  148,  n.  4. 

Albini,  Hugh  of.  Earl  of  Sussex,  11  f., 

113,  n-  3- 

Alderley,  Richard,  122,  n.  i. 

Alfred  the  Great,  king  of  England  (871- 
901),  166;  law  of,  164,  n.  10. 

Alienation  fees,  54  ff.,  60,  170,  183;  in 
Normandy,  172  f.,  174,  182;  in  the 
bastides,  175;  in  the  Netherlands,  176; 
in  Germany,  179,  180,  182   201  f. 

Alnwick,  67,  122,  184. 

Alsace,  198. 

Altenburg,  196,  n.  4. 

Altringham,  172,  n.  i;  landgable  at,  67, 
96,  n.  3;  free  sale  at  113,  184;  free 
devise  at,  133,  152,  n.  5,  184;  mort- 
gage at,  147- 

Anne  of  Bohemia,  wife  of  Richard  II  of 
England,  28,  n.  i. 

Anstyn,  John,  122,  n.  i. 

Arnold,  Wilhelm,  7,  8,  178,  n.  i,  211. 

Arras,  176. 

Arthez,  175,  n.  2. 

Arundel,  Earl  of,  20,  n.  i. 

Astrad  Canon,  98. 

Attendorn,  204. 

Augsburg,  179,  204. 

Austria,  181,  n.  9. 

Bacon,  Sir  Nicholas,  12,  n.  2. 
Bakewell,  56,  n.  6,  89,  132,  184. 


Bamberg,  205. 

Baret,  John,  122,  n.  i. 

Barnstaple,  19;  landgable  at,  67;  resists 

collection  of  the  landgable,  73;  devise 

unknown  at,  136,  184. 
Barons'  War,  the  (1263-65),  43. 
Barre,  Joan,  wealthy  widow,  149,  n.  4. 
Basel,  7,  85,  178,  n.  i,  198,  n.  i. 
Basingstoke,  82,  156. 
Bastides,  the,  7,  98,  n.  i,  99,  n.  2,  113, 

n.  5,  175,  181,  n.  2. 
Bateson,  Mary,  6,  120,  n.  j,  136,  n.  2, 

166-172,  211,  212. 
Bath,  174,  n.  4;    escheat  at,  32,  n.  2; 

landgable  at,  65,  67;    sale  price  of  a 

shop  at,  80,  81;  rate  of  interest  at,  85; 

restricted  sale  at,  121,  184;  devise  at, 

134,  184. 
Bath  and  WeUs,  bishop  of,  113,  n.  4,  126, 

n.  I,  132,  n.  7. 
Bayeux,  173,  174. 
Beckum,  201,  205,  n.  16. 
Bedford,  64,  67,  105,  n.  3. 
Bedfordshire,  43,  n.  i,  93,  n.  4. 
Benjamin  the  Jew,  38,  n.  4. 
Berkelay,  John  de,  36,  n.  6. 
Berne,  179,  181. 
Berwick,  93,  n.  4;    wardship  at,  15,  18; 

escheat  at,  24,  91,  n.  2;  landgable  at, 

67,  71;  rent  simple  at,  82;   the  waste 

at,  105,  n.  6;  free  devise  at,  133,  184. 
Best,  John,  90,  n.  4. 
Best,  Thomas,  122,  n.  i. 
Beverley,  120,  128,  n.  2,  183,  184,  202. 
Bideford,  21,  58,  67. 
Bielefeld,  196,  n.  7. 
Bigod,  Roger,  Earl  of  Norfolk,  25,  31, 

n.  I,  39. 
Birde,  John,  122,  n.  i. 
Birmingham,  23,  46. 
Bocher,  John,  122,  n.  i. 


222 


INDEX 


Bodenwerder,  202. 

Bodmin,  64,  n.  8. 

Bolebec,  Hugh  de,  160,  n.  4. 

Bonseriant,  VV.,  43,  n.  i. 

Bootham,  19,  n.  5  64,  131,  n.  5. 

Borough-English,  131,  n.  i,  167,  n.  2. 

Botesford,  16,  n.  6. 

Bracton,  Henry  de,  5  f.,  130,  143  f.,  212. 

Bradford,  67. 

Bradninch,  67. 

Brain,  Robert,  38,  n.  4. 

Brakel,  195,  n.  8,  197. 

Bramwyth,  21,  n.  2. 

Bregenz,  198,  n.  i. 

Breisach,  197. 

Bremen,  179,  180,  205. 

Breteuil,  166  f. 

Breteuil,  Laws  of,  6,  12,  n.  4,  19,  n.  6,  55, 
n.  6,  57,  97,  119,  n.  7,  123,  136  ff.,  166- 
172. 

Bridgnorth,  67,  71,  133,  152,  n.  5,  184. 

Bridgwater,  93,  n.  4,  104,  n.  i,  145,  n.  i; 
landgable  at,  67,  71;  rents  simple  at, 
82;  retained  rent  at,  86,  n.  2;  solar  at, 
loi,  n.  i;  divisibility  of  realty  at,  108, 
n.  2. 

Bridi>ort,  50,  n.  5;  escheat  at,  32,  n.  2; 
landgable  at,  68;  sale  price  at,  81; 
rents  simple  at,  82;  curtilage  at,  loi, 
n.  i;  free  sale  at,  112,  184;  at  fee- 
farm,  154,  n.  I. 

Bristol,  14,  i5,n.3,  16,  19,0.6,27,36,37, 
41,  n.  2,  50,  n.  5,  102,  n.  2,  123,  125, 
n.  I,  167,  170,  n.  8;  attempts  to  keep 
the  king's  escheats,  28,  n.  i;  its  own 
lord,  59 ;  burgage  rents  at,  65,  68,  76; 
rent  simple  at,  83;  receives  a  grant  of 
the  waste,  105;  free  sale  at,  112,  113, 
184;  devise  at,  133  f.,  136,  138,  n.  i, 
142,  n.  2,  143,  184;  accumulation  of 
burgages  in,  149,  150. 

BrisloUian  boroughs  in  Ireland,  169. 

Hruk,  208. 

Brun,  I'romund  le,  31,  n.  i. 

Brun,  Sir  Nigel  Ic,  31,  n.  i. 

Brunswick,  203,  204. 

Buckingham,  160,  n.  4. 

Buckingham,  Duke  of,  73,  n.  5. 


Burgage,  nature  of  the,  92-101. 

Burgage  rents,  61-106,  159-162,  165  f., 
i7of.;  in  Normandy,  173  f.;  in  the 
bastides,  175;  in  the  Netherlands, 
176;  in  Germany,  180,  199  fif. 

Burgh,  Hubert  de,  35,  n.  2,  38,  88,  n.  5. 

Burton-on-Trent,  68. 

Bury  Saint  Edmunds,  14,  n.  2,  17,  19, 
55  f.,  64,  68,  72,  n.  4,  76,  n.  3,  117, 
125,  n.  2,  126,  n.  I,  140,  184. 

Buxton,  Robert,  12,  n.  2. 

Bykes,  93,  n.  4. 

Caen,  6  f.,  173. 

Caermarthen,  68,  83. 

Cambridge,  6,  25,  38,  45,  93,  n.  4,  163, 
184,  i86;  escheats  at,  28,  n.  i,  30,  32, 
n.  2;  grant  of  forfeitures  to,  42;  land- 
gable and  hawgable  at,  62,  63,  64,  68, 
74,  n.  I,  76,  78,  n.  I,  99,  n.  i,  161,  165, 
166,  n.  2,  168;  rent  simple  at,  83; 
retained  rent  at,  86,  n.  2;  pepper  rent 
at,  87;  the  waste  at,  106,  n.  i;  union 
of  messuages  at,  109;  borough  court 
at,  129,  n.  4;  free  devise  at,  133,  184; 
accumulation  of  burgages  at,  150; 
commerce  of,  153,  n.  i;  grant  of 
Firma  Burgi,  155. 

Cambridge,  University  of,  32,  n.  2. 

Canterbury,  41,  n.  i,  93,  n.  4;  wardship 
at,  17;  age  of  majority  at,  18,  n.  3; 
escheats  at,  27,  29,  36;  forfeiture  at, 
35,36;  sale  price  at,  81;  historians  of , 
133;  free  devise  at,  133,  184;  at  fee- 
farm  (1234),  156;  landgable  at,  159; 
aristocratic  holdings  at,  164. 

Canute,  king  of  England  (loi 7-1035), 
22,  23,59,  164. 

Canyngs,  or  Cannings,  W.,  merchant  of 
Bristol,  149,  150. 

Carbuncl,  Thomas,  abbot  of  Gloucester, 
54,  n.  I. 

Cardiff,  12,  55,  n.  4,  93,  n.  4,  131,  n.  2; 
relief  unknown  at,  19;  landgable  at, 
68,  170,  n.  9;  right  to  lease  at,  89,  90, 
n.  4;  holders  of  half-burgages  have 
burgess  rights,  108,  n.  5,  109;  sale  at, 
114,   115,   116,  n.  I,   184;    devise  un- 


INDEX 


223 


known  at,  137,  184;  mortgage  at,  146; 
ecclesiastical  holdings  in,  149. 

Carlisle,  68,  83,  100,  n.  5,  103,  n.  3,  156, 
157,  n.  3,  177;  tenement  of  David  the 
Dyer  at,  102,  n.  3. 

Carlow,  68. 

Carmarthen,  see  Caermarthen. 

Carnarvon,  68. 

Carter,  Adam,  78,  n.  5. 

Castle  messuages,  in  boroughs,  103  f. 

Castle  Rising,  17;  subject  to  the  knight- 
ing and  marrying  aids,  10  f.,  59,  193, 
n.  i;  free  from  the  marriage  incident, 
12;   free  sale  at,  56,  n.  6,  113,  184. 

Chamberlayn,  Edward,  122,  n.  i. 

Channel,  the,  129. 

Chaors  (Cahors),  Patrick  de,  29,  n.  i. 

Chard,  126,  n.  i;  landgable  at,  68;  free 
sale  at,  113,  184;  free  devise  at,  132, 
137,  n.  5,  184;  mortgage  at,  147. 

Charlton  Hundred,  20,  n.  i. 

Charmouth,  58. 

Chepstow,  149,  n.  4. 

Cheshire,  58,  n.  10. 

Chester,  72,  n.  3;  landgable  at,  62,  66  f., 
68;  at  fee-farm,  157,  n.  2;  customs  of, 
in  Domesday,  158,  n.  2,  163;  relief  at, 
164. 

Chesterfield,  57,  78,  n.  2,  127,  183. 

Chichester,  bishop  of,  38. 

Chippenham,  44,  n.  i. 

Christchurch  Twynham,  15. 

Cinque  Ports,  the  (Hastings,  Romney, 
Hythe,  Dover,  and  Sandwich;  later 
Winchelsea  and  Rye  also,  and  some- 
times Faversham  and  Pevensey),  13  f., 
15,  n.  3,  16,  17,  18,  19,  41,  42,  44,  128, 
129,  153,  n.  I,  176,  183,  184,  202. 

Citeaux,  abbot  of,  71,  n.  2,  78,  n.  4,  109, 
n.  5. 

Cleves,  195,  196,  208,  n.  4. 

CUfton,  145,  n.  I. 

Cloyn,  68. 

Coke,  Sir  Edward,  4,  213. 

Colchester,  no,  n.  3;  fealty  at,  46,  47; 
landgable  at,  68;  rents  simple  at,  83; 
rentars  at,  90,  n.  4;  restricted  devise 
at,  139,  184. 


Colmar,  203. 

Cologne,  8,  176,  n.  9,  180,  181,  n.  11,  198, 
202,  n.  I. 

Colton,  WilUam  de,  105,  n.  3. 

Combe,  in  Oxfordshire,  27,  n.  2. 

Congleton,  98;  landgable  at,  68;  char- 
tered by  Henry  de  Lacy,  96,  169;  lands 
and  burgages  at,  96,  n.  2,  98,  169; 
free  sale  at,  113,  184;  devise  at,  132, 
137,  n.  5,  184. 

Conquest,  the,  23,  67,  n.  2,  158,  162,  163, 
164,  168. 

Constance,  181,  n.  10. 

Coparcenery,  109  f.,  179. 

Cork,  13,  19,  n.  6,  30,  n.  4;  landgable  at, 
65,  68;  free  sale  at,  113,  123,  184;  free 
devise  at,  135,  n.  2,  184;  at  fee-farm, 
156. 

Cork,  prior  of,  30,  n.  4. 

Cornwall  64,  n.  8. 

Cosfeld,  194,  n.  2,  195,  205. 

*  Courtesy  of  England,'  89,  145. 

Coventry,  83,  88,  loi,  n.  i. 

Cr6cy,  battle  of  (1346),  17,  n.  11. 

Cressy,  Reginald  de,  clergyman  of  Nor- 
wich, 25,  27,  n.  2. 

Cumbe,  see  Combe. 

Curie  Seimbres,  Alcide,  7, 175,  n.  i,  211. 

Danelaw,  the,  19.  64,  165. 

Danes,  the,  165,  166,  n.  i. 

Danish  customs,  41. 

Danish  kings,  the,  22. 

Dartmouth,  50,  n.  5;  relief  at,  20;  suit 
of  court  at,  58;  landgable  at,  68,  166, 
n.  2;  sale  prices  at,  80,  n.  i,  81;  re- 
tained rent  at,  86,  n.  2;  divisibiUty  of 
realty  at,  108,  n.  2;  consent  to  sale  at, 
145,  n.  I. 

Dattenried,  197,  205. 

David  the  Dyer,  102,  n.  3. 

Davy.  A.  and  R.,  139,  n.  i. 

Deal,  14,  n.  i. 

Denbigh,  166;  relief  at,  20,  21,  n.  i,  59; 
hawgable  at,  63,  64,  68,  71  f.,  96,  n.  i; 
tenurial  customs  of,  97  ff.,  171,  n.  2. 

Derby,  119,  156,  184. 

Derby,  Earl  of,  73,  n.  7. 


224 


INDEX 


Des  Marez,  Guillaume,  7,  8,  178,  n.  i, 
211. 

Desmond,  Earl  of,  73,  n.  i. 

De  Viris  Rdigiosis,  statute,  32,  n.  2,  91. 

Devise,  see  Free  devise;  Restricted  de- 
vise. 

Devon,  county,  16,  n.  6. 

Devon,  Earl  of,  see  Redvers. 

Dieburg,  180,  n.  8. 

Diessenhofen,  207. 

Dingolfing,  204  f. 

Divisibility  of  burghal  realty,  108  ff.; 
in  Germany,  179. 

Dogett,  Richard,  122,  n.  i. 

Domesday  Book,  9,  19,  n.  5,  64  f.,  158- 
166. 

Domesday  era,  the,  71,  74, 158-166, 168, 
173,  n.  2. 

Domesday  scribes,  162,  174,  n.  4. 

Doncaster,  21,  47,  58,  68,  157,  n.  2,  186. 

Douai,  141,  n.  2. 

Dover,  20,  n.  i,  33,  n.  i;  wardship  at, 
15;  forfeiture  at,  40  f.,  42,  164;  rent 
simple  at,  83;  hen  rents  at,  87;  re- 
stricted sale  at,  117,  118,  123,  184; 
borough  customs  of,  in  Domesday, 
158,  163. 

Dresden,  195. 

Drogheda,  68,  123,  136,  184;   charter  of 

1253,  13- 

DubHn,  13,  n.  8,  14,  15,  n.  3,  50,  n.  5, 
102,  n.  2,  167,  170,  n.  8,  201,  n.  12; 
wardship  at,  16;  relief  unknown  at, 
19,  n.  6;  escheats  at,  27,  n.  3,  31, 
n.  I,  32,  n.  2;  forfeiture  at,  40,  41, 
42,  43,  n.  3,  44;  landgable  at,  65  f., 
68,  76;  rents  simple  at,  83;  cum- 
min rent  at,  87,  n.  4;  leases  in  per- 
petuity at,  89,  n.  9;  maximum  limit 
of  burgages  at,  100,  n.  i;  free  sale  at, 
113,  123,  152,  184;  free  devise  at,  133, 
134,  135.  n-  2,  138,  n.  I,  143,  184;  a 
Bristollian  borough,  136,  156;  dis- 
herison of  heirs  at,  141;  at  fee-farm, 
156. 

Dublin,  archbishof)  of,  30,  n.  4. 

DuCange,  cited,  50,  n.  5,  90,  n.  4. 

Dudcrstadt,  20^. 


Dunbar,  Lord,  32,  n.  1. 
Dunheved,  57,  n.  4,  68,  90,  n.  4. 
Dunning,  wealthy  burgess  of  Cambridge, 

150. 
Dunwich,  13,  17,  120,  141,  184. 
Durham,  47,  50,  n.  5,  58,  68,  71,  83. 

East  Anglia,  138,  153. 

East  Grinstead,  48,  58,  68,  96,  n.  3. 

East  Riding,  the,  134. 

East  Teignmouth,  48. 

Eckertz,  Gottfried,  8. 

Edward,  '  the  Confessor,'  king  of  Eng- 
land (1042-66),  45,  117,  n.  4,  120, 
n.  3,  124,  125,  n.  2,  158,  159,  160,  161, 
162,  164,  168. 

Edward  I,  king  of  England  (1272-1307), 
14,  18,  20,  n.  5,  34,  35,  n.  I,  120,  175, 
n.  I. 

Edward  II,  king  of  England  (1307-27), 
105,  n.  7,  133. 

Edward  III,  king  of  England  (1327-77), 
17,  n.  II,  24. 

Edward  IV,  king  of  England  (1461-83), 
42. 

Egremont,  15. 

Eisenach,  201,  202. 

Elector  Palatine,  the,  203,  n.  10. 

Elizabeth,  '  the  Winter  Queen,'  daughter 
of  James  I  of  England,  wife  of  Elector 
Frederick  V  of  the  Palatinate,  mar- 
riage of,  12,  n.  2. 

Ellis,  John,  121. 

Ely,  bishop  of,  49,  87,  n.  4,  149,  152, 
n.  2. 

Ennen,  Leonard,  8. 

Erfurt,  200,  n.  3,  204. 

Escheat,  24-33;  in  Normandy,  174;  in 
Germany,  181,  195   f.,  199. 

Essex,  64,  157,  n.  3. 

Eton,  93,  n.  4. 

Europe,  northern  and  western,  3,  11, 
145,  170;   northern,  175;   feudal,  199. 

Euskirchen,  181. 

Evesham,  68. 

Exchequer,  the,  72,  91,   105,  n.  3,   125, 

155,  156. 
Exchequer  of  the  Jews,  40,  n.  2. 


INDEX 


225 


Exchequer  of  Normandy,  the,  172. 

Exeter,  20;  relief  at,  20,  20,  n.  8;  fealty 
at,  47;  retrait  feodal  at,  54,  59;  re- 
tained rent  at,  86,  n.  2;  solar  at, 
loi,  n.  i;  rmnous  tenements  at,  loi, 
n.  I. 

Exeter,  bishop  of,  48,  n.  3. 

Exeter,  Duke  of,  149,  n.  2. 

Fake,  Martin,  145,  n.  i. 

Famham,  21,  39,  62,  n.  2,  155,  n.  3. 

Fealty,  45-49,  59,  60;  in  Normandy, 
172;  in  Germany,  180,  197  f. 

Femme  covert,  rights  of  the,  144  ff.;  in 
Normandy,  173;  in  Germany,  179. 

Feudalism,  3,  9,  11,  60,  163,  183,  186, 
199;  feudal  incidents  affecting  bur- 
gage tenure,  11-60,  163  f.,  172  f.,  176, 
180  f.,  183,  185,  193-199. 

Firma  Burgi,  the,  10,  30,  n.  4,  72,  73,  91, 
148,  n.  4,  154-157,  182,  n.  2. 

Fitz  Alwyn's  Assize,  loi,  n.  i. 

Fitz  Anthony,  Thomas,  30,  n.  4. 

Fitz-Stephen,  Gilbert,  lord  of  Norton, 
creates  the  borough  of  Dartmouth 
piecemeal,  20,  n.  2,  50,  n.  5,  58. 

Flanders,  144,  n.  i,  182. 

Flanders,  counts  of,  177. 

Flemish  cities,  the,  153,  n.  i,  175,  177, 
182,  n.  2,  202. 

Flemish  civic  legislation,  183. 

Flers,  172. 

Fletcher,  John,  122,  n.  i. 

Ford,  abbot  of,  58,  n.  8. 

Forfeiture,  33-45,  164,  185;  in  Germany, 
181,  196  f.,  199. 

France,  6,  10,  17,  n.  11,  97;  southern,  7, 

175- 
Francis  I,  king  of  France  (1515-47),  172, 

n.  8. 
Franco-Norman  invasion,  the,  185. 
Frank  almoin,  64. 
Frankfort,  180,  196,  n.  7,  204. 
Frauenburg,  203. 

Frederick,  duke  of  Saxony,  198,  n.  5. 
Free  Cities,  the,  182,  n.  2. 
Free  devise,  130-135,  152,  163,  171,  184, 

208;  in  Germany,  206  f. 


Free  sale,   11&-114,  152,   184,   208;    in 

Germany,  202  f. 
Freiburg-im-Breisgau,  179,  181, 196, 197, 

200,  n.  3,  206,  n.  I. 
French,  the,  bum  Lymington,  103,  n.  3. 
French  influence  on  the  Cinque  Ports, 

153,  n.  i;   on  Norwich,  170,  n.  i;   on 

Normandy,  after  1203,  173,  n.  3. 
Friars  Minors,  the,  79,  n.  i. 
Friedrichshafen,  207. 
Frodsham,  68. 

Gable,  62  f.,  159. 

Galtres,  forest  of,  103,  n.  i. 

Gannoc,  68,  72,  97. 

Garz,  200,  n.  3. 

Gascon  customs,  at  Denbigh,  171,  n.  2. 

Gehrden,  197,  201,  203. 

Gelnhausen,  204,  206,  n.  i. 

Genestal,  R.,  6  f.,  172,  n.  2,  211. 

Gengler,  H.  G.,  192. 

Germanic  law,  178;  land  law,  115,  125, 

172. 
Germany,  urban  tenure  in,  3,  7,  10,  85, 

144,  n.  I,  173,  n.  3,  174,  178-183,  191- 

208. 
Gemim,  W.,  132,  n.  5. 
Ghent,  7,  175,  176,  177,  178,  n.  i. 
Gild  Merchant,  the,  at   Beverley,  128, 

n.  2;  at  Reading,  156,  n.  17. 
Gimont,  175,  n.  2. 
Giraldus  Cambrensis,  98,  n.  3. 
Gite,  59,  72,  n.  3,  199. 
Glanvill,  Ranulf  de,  5,  130,  214. 
Gloucester,  53  f.,  93,  n.  4,  121,  n.  2,  164, 

167;  landgable  at,  65,  66,  68,  76;  rents 

simple  at,  83 ;  divisibility  of  burgages, 

108,  n.  2;  free  sale  at,  112,  184. 
Gloucester,  abbot  of,  66,  n.  5. 
Gloucester,   Earl  of,  issues  charters  to 

Cardiff   and   Tewkesbury,    108,    n.  5, 

114,  137,  n.  2. 
Gobbers,  Joseph,  8. 
Goslar,  203,  n.  6. 
Gowthorpe,  manor  of,  148,  n.  4. 
Grand  serjeanty,  103,  n.  i. 
Great  Charter,  the,  see  Magna  Charta.' 
Great  Inquiry,  the,  of  1279,  3°,  ^3- 


226 


INDEX 


Grech,  196,  207. 

Grenade,  175,  n.  2. 

Grevenmachem,  200,  n.  3. 

Grimsby,  36,  68,  112,  n.  2, 157,  n.  2,  170, 

n.  8. 
Grimston,  Agnes  de,  134,  n.  5. 
Grimston,  Richard  de,  134,  n.  5. 
Gross,  Charles,  9. 
Grossen-Salze,  194. 
Ground  rents,  see  Burgage  rents. 
Guienne,  98,  n.  i,  113,  n.  5. 

Hachard,  Nicholas,  148. 

Hagenau,  179,  181,  199. 

Haie  du  Theil,  172,  n.  3. 

Halle,  200,  n.  3. 

Hamburg,  204,  205,  n.  18. 

Hamm,  180,  n.  8, 181,  200,  n.  3. 

Hamo  of  Valois,  13,  n.  8. 

Hanover,  195,  204. 

Hanse,  the,  206. 

Hardness,  50,  n.  5. 

Hardy,  Sir  T.  D.,  10,  214. 

Hatherlegh,  157,  n.  3. 

Haverfordwest,  22,  83,  158,  n.  i. 

Havre,  172,  notes  6  and  8. 

Hawgable,  62  ff.,  165. 

Hedon,  120,  n.  4;   wardship  at,  17;   age 

of  majority  at,  18,  n.  3;    escheat  at, 

32,  43,  n.  3;  free  devise  at,  134,  184. 
Heilbronn,  203. 
Heimburg,  193,  n.  4. 
Henry  I,  king  of  England  (1100-35),  22, 

n.  2,  76,  n.  3,  120,  159,  163,  168. 
Henry  II,  king  of  England  (i  154-89),  44, 

n.  I,  67,  n.  2,  120,  155. 
Henry  III,  king  of  England  (1216-72), 

16,  n.  6,  30,  38,  71,  n.  2,  80,  n.  i,  141, 

186,  n.  I. 
Henry  IV,  king  of  England  (1399-1413), 

25,  n.  6. 
Henry  V,  king  of  England  (1413-22),  20, 

n.  2,42. 
Henry  VI,  king  of  England  (1422-61), 

57- 
Henry  VII,  king  of  England  (1485-1509), 

59- 


Henry  VIII,  king  of  England  (1509-47), 

157,  n.  3. 

Henry  I,  '  the  Fowler,'  king  of  Germany 
(919-36),  169. 

Henry  the  Carpenter,  49,  152,  n.  2. 

Herbert,  William  (d.  1570),  Earl  of  Pem- 
broke, 32,  n.  2. 

Hereford,  103,  n.  3,  127,  157,  n.  3;  age  of 
majority  at,  18,  n.  3;  free  from  relief, 
19;  subject  to  heriot  in  the  Domesday 
era,  164,  199,  n.  i;  free  from  heriot  in 
1281-82,  22;  escheat  at,  29,  n.  i; 
fealty  at,  45,  46;  alienarion  fees,  56, 
183,  202;  landgable  at,  68,  71,  160  f.; 
rents  simple  at,  83,  90,  n.  i;  free  sale 
at,  114  f.,  184;  restricted  sale  at,  124, 
n.  I,  163;  devise  at,  132,  140,  n.  i; 
borough   customs   of,   in   Domesday, 

158,  168;    French  and  EngUsh  bor- 
oughs at,  167,  168. 

Herford,  194,  n.  11. 

Heriot,    22-24,    59,    163,    164;     in    the 

Netherlands,  176;    in  Germany,  179, 

180,  193  ff. 
Hertford,  64,  162. 
Hesding,  Ernulf  de,  160,  n.  4. 
Heymer,  William,  122,  n.  i. 
Hildesheim,  203. 
Hill,  John,  12,  n.  2. 
Hock-Day  tenure,  167,  n.  3. 
Holbom,  149,  n.  i. 
Holderncss,  32,  n.  i. 
Holzhagen,  200,  n.  3. 
Holzmindcn,  196. 
Homage,  49  f.,  59;    in  Normandy,  172; 

in  Germany,  180. 
Horde,  194,  n.  11. 
Horswadc  mill,  88,  n.  6. 
Hull,  185,  n.  2;   escheat  at,  25;   a  royal 

borough,  113    132;    free  sale  at,  113, 

184;  devise  at,  132  f.,  143,  n.  2,  184. 
Hundred    Rolls,    the    {RoluU    Ilutidre- 

dorum),  9,  63,  150. 
Hundred  Years'  War,  the,  103,  n.  3. 
Huntingdon,  42,  69,  160,  162. 
Huntingdon,  Earl  of,  149,  n.  4. 
Hiissen,  205. 


INDEX 


227 


Husting,  Court  of  (the  Hiistings),  16, 
n.  6,  III,  n.  2,  128,  n.  2,  129,  n.  4,  130, 
n.  2,  141,  n.  6. 

Hythe,  81,  87,  n.  2,  loi,  n.  i. 

Iglau,  207,  n.  5. 

Inchcoyn,  58. 

Ingolstadt,  195. 

Inistiogue,  69, 96,  n.  3, 109,  n.  2, 123  136, 
184. 

Inpenny  and  outpenny,  paid  to  the 
borough  lord,  57  f.;  to  the  community, 
127  ff. 

Interest,  rate  of,  85. 

Ipswich,  15,  n.  3,  93,  n.  4;  wardship  at, 
17;  age  of  majority  at,  18,  n.  3;  free 
from  relief,  19;  escheat  at,  24;  free 
from  fealty,  45 ;  free  from  homage,  50, 
n.  i;  hawgable  at,  64,  69;  rent  simple 
at,  83;  retained  rent  at,  86,  n.  2;  hen 
rents  at,  87;  rose  rents  at,  88,  n.  6; 
size  of  a  messuage  at,  100,  n.  5;  co- 
parcenery  at,  no;  sale  probably 
restricted  at,  120  f.,  124,  184;  devise 
at,  138  f.,  145,  184. 

Ireland,  30,  n.  4,  39,  199,  n.  2,  200;  the 
king's  escheator  for,  25,  n.  4,  31,  n.  i; 
the  justiciary  of,  57,  n.  4. 

Ireland,  boroughs  of,  9,  52,  60,  93,  95, 
96,  97,  98,  135,  171,  199,  n.  3;  ward- 
ship in,  16;  relief  unknown  in,  19;  fall 
into  two  groups,  123,  136,  169;  differ 
as  to  restriction  on  sale,  125,  n.  2, 152; 
mortgage  in,  146;  BretoUian  boroughs, 
167, 168, 170, 184. 

Irish,  the,  98. 

Isaac,  Jew  of  York,  singular  death  of,  26, 
n.  s. 

Isabel,  daughter  of  Reginald  de  Cressy, 
25- 

James  I,  king  of  England  (1603-25),  12, 

n.  2. 
Jerichow,  207. 
Jewry,  the,  104,  n.  i. 
Jews,  the,  26  f.,  36,  n.  7,  39  f.,  91,  n.  2, 

113,  n.  9. 
John,  clerk  of  Shefford,  43,  n.  i. 


John,  king  of  England  (1199-1216),  13, 

n.  I,  14,  IS,  n.  3,  52,  6s,  113. 
John  of  Gaunt,  28,  n.  2. 
John  of  Yarmouth,  127,  n.  i. 

Kahla,  197,  198. 

Kenfig,  47,  n.  $,  81,  86,  n.  2,  93,  n.  4, 147, 

n.  3- 
Kent,  41. 
Keutgen,  Friedrich,  7,  8,  178,  n.  i,  191, 

n.  2,  212. 
Kidderminster,  19,  22. 
Kiel,  202,  206. 

Kilkenny,  13,  16,  n.  4,  109,  n.  2. 
Kingsthorpe,  S4,  n.  3, 119,  n.  3, 122,  n.  i, 

126,  n.  I,  128,  n.  4,  142,  n.  4,  147,  n.  6, 

174,  n.  3. 
Kingston-upon-Hull,  see  Hull. 
Kingston-on-Thames,  83,  93,  n.  4,  156. 
Kinsale,  73. 

Kin's  retrait,  see  Retrait  lignager. 
Konigsberg,  200,  n.  3. 

Lacy,  Henry  de.  Earl  of  Lincoln,  char- 
ters Congleton  (1272),  96,  113,  n.  2, 
132,  n.  2,  169;  founds  Denbigh  (1290), 
20,  n.  5,  52,  64,  97  f.,  166. 

Lacy,  Roger  de,  78,  n.  2. 

Lancashire  boroughs,  the,  120,  124. 

Lancaster,  Duke  of,  104,  n.  i. 

Lancaster,  Earl  of,  lord  of  the  borough  of 
Liverpool,  73. 

Lancaster,  Henry,  Earl  of,  104,  n.  i. 

Landgable,  64-79,  iS9~i62,  165  f.,  185. 

Landsberg,  202,  n.  i. 

Landshut,  208. 

Landtoll  Penny,  the,  67,  n.  5. 

Launceston,  24,  n.  2. 

Leasing,  89  f.;  in  the  Netherlands,  176. 

Lechnich,  201,  203. 

Leeds,  99;  aUenation  fees  at,  s6;  land- 
gable  at,  69;  capital  messuage  at,  78; 
leasing  at,  89,  90,  n.  4;  arable  plots 
included  in  the  messuages,  96,  n.  i; 
free  sale  at,  112,  184. 

Leek,  69. 

Legras,  Henri,  6  f.,  212. 


228 


INDEX 


Leicester,  50,  n.  5,  162;  relief  at,  20,  33, 
n.  I,  59;  escheats  at,  25,  28;  forfeiture 
at,  42;  bridge-silver  and  gavel-pence 
at,  62,  n.  2;  landgable  at,  69;  rents  in 
kind  at,  72,  n.  2;  hen  rents  at,  72,  n.  2, 
78,  n.  6,  87,  173,  n.  7,  178,  n.  2;  sale 
price  at,  81;  rent  simple  at,  83;  free 
sale  at,  112,  184;  has  grant  of  the 
farm  in  fee,  156. 

Leo,  a  Jew,  26,  n.  3. 

Lewes,  69,  160,  n.  5. 

Liber  Cuslumarum,  126,  216. 

Liber  Winton',  9,  65,  71,  92,  n.  2,  159. 

Lichfield,  23,  69. 

Lidiard,  Johanna  de,  134,  n.  2. 

Lidiard,  John  de,  134,  n.  2. 

Limerick,  13;  has  the  customs  of  Dublin, 
13,  n.  8,  19,  n.  6,  113,  123,  135,  n.  2; 
military  service  at,  52,  59;  landgable 
at,  69;  free  sale  at,  113, 123, 184;  devise 
at,  135,  n.  2,  138,  n.  i,  184;  at  fee- 
farm  (1197),  156. 

Lincoln,  162;  Jews  at,  40,  n.  2;  land- 
gable at,  67,  69,  161,  166,  168;  retrait 
lignager  at,  120,  163,  184;  at  fee-farm 
(1130),  155. 

Lincoln,  Earl  of,  see  Lacy. 

Lincolnshire  men,  settle  Denbigh,  64, 97. 

Lindsay,  barony  of,  24,  n.  5. 

Lippstadt,  196. 

Liskeard,  25. 

Lisle,  Viscount,  149,  n.  4. 

Littleton,  Sir  Thomas,  5,  213. 

Liverpool  91,  n.  2,  104,  n.  i;  escheat  at, 
25;  gtte  at,  59,  72,  n.  3;  landgable  at, 
69,  75,  n.  2;  intermittent  Firma  Burgi 
of,  73,  156  f.;  rents  simple  at,  83; 
dimensions  of  messuages  at,  100,  n.  5; 
di\'isibility  of  burgages,  75,  n.  2,  io8. 

Llandovery,  69,  71,  96,  n.  3. 

Lods  d  vcntes,  see  Alienation  fees. 

London,  16,  n.  6,  38,  70,  91,  n.  2,  93,  n.  4, 
128,  n.  2,  160,  177;  private  dealing  in 
wardship  and  marriage  at,  18,  n.  2; 
escheats  at,  24,  n.  5,  27,  30,  35,  44; 
royal  wine-cellar  at,  30;  forfeiture  at, 
35,  3^',  43;  tenurial  heterogeneity  and 
its  consequences,   37;    fealty  at,   47; 


landgable  at,  69,  76,  n.  i,  165,  182; 
capital  messuages  at,  79;  sale  simple  at, 
80,  81;  rents  simple  at,  83;  retained 
rents  at,  86,  n.  2;  condiment  rents  at, 
87,  notes  4  and  5;  spur  rents  at,  88;  rose 
rents  at,  88;  leasing  for  short  p>eriods, 
89  f.;  dimensions  and  values  of  mes- 
suages, 100,  loi;  tenure  in  the  mes- 
suages dep>endent  on  the  Tower,  104, 
n.  I ;  the  waste  given  to  the  burgesses, 
105;  divisibility  of  realty  at,  108,  179, 
n.  5;  appeals  from  the  Hustings,  iii, 
n.  2;  free  sale  at,  112,  184;  the  dis- 
appearance of  the  kin's  preemption, 
125  f.,  152  f.;  land  transfers  by  inden- 
ture at,  129,  n.  4;  free  devise  at,  130, 
131,  142,  184;  peculiar  limitation 
upon  freedom  of  devise,  141,  145,  207, 
n.  1 1 ;  holdings  of  the  bishop  of  Ely  in, 
149. 

London,  bishop  of,  33,  43,  56,  128,  n.  4, 
129,  n.  2. 

Long  Parliament,  the,  186. 

Lord's  retrait,  the,  see  Retrait  fiodal. 

Lostwithiel,  69. 

Louviers,  173,  n.  6. 

Low  Countries,  the,  see  Netherlands. 

Liibeck,  179,  203,  n.  6,  205,  n.  18. 

Lucerne,  208. 

Ludlow,  42,  43,  44,  69,  71. 

Liineburg,  194,  n.  11. 

Liinen,  194,  n.  11. 

Lusignans,  the,  12,  n.  2. 

Lymington,  103,  n.  3. 

Lynn  Regis  (Lynn,  King's  LjTin,  Bis- 
hop's LjTin),  20,  n.  I,  ^$,  n.  i,  79,  n.  3, 
84, 112, 133, 184. 

Macaulay,  98,  n.  3. 

Madox,  T.,  10,  156,  215. 

Magdeburg,  202,  n.  i. 

Magna  Charta,  4. 

Maitland,  F.  W.,  6,  36,  62,  152,  158. 

Maldon,  128,  129,  n.  2;  escheat  at,  ;is; 
forfeiture  at,  39,  43;  fractional  regis- 
tration fee  at,  56,  57,  n.  5,  183;  haw- 
gable  at,  64;  rent  simple  at,  84;  joint 
tenancy  at,  no,  n.  3. 


INDEX 


229 


Manchester,  15,  n.  2;  relief  at,  21,  59, 
171,  n.  2;  heriot  at,  22,  23,  n.  6,  59, 
171,  n.  2,  193;  fealty  at,  48,  50,  59; 
homage  at,  49,  50,  59;  alienation  fees 
^t,  55,  57;  suit  of  court  at,  58;  land- 
gable  at,  69;  rents  simple  at,  84;  right 
to  lease  at,  89;  restricted  sale  at,  119, 
184;  restricted  devise  at,  137,  172, 
n.  I,  184. 

Mannheim,  in  Pennsylvania,  88,  n.  7. 

Manno  Brito,  160,  n.  4. 

Marlborough,  18,  n.  2,  44,  n.  i. 

Marriage,  12-15,  59,  164,  170;  in  Nor- 
mandy, 170;  in  Germany,  180,  193. 

Marshal,  William  (d.  12 19),  Earl  of 
Pembroke,  charters  Kilkenny,  16, 
n.  4. 

Marshal,  William  (d.  1231),  Earl  of  Pem- 
broke, son  of  the  preceding,  granted 
tenements  in  London,  38,  80,  n.  i. 

Masscrief,  Robert  le,  43,  n.  i. 

Maurer,  G.  L.  von,  192. 

Medebach,  181,  194,  201. 

Melcombe  Regis,  69,  141,  n.  4,  184. 

Mercia,  Alderman  of,  166. 

Merewether,  H.  A.,  6,  211. 

Merton  College,  63,  n.  3. 

Merton,  prior  of,  157,  n.  3. 

Middlewich,  58,  n.  10. 

Military  service,  51  f.,  58,  59. 

Minden,  197,  n.  i. 

Mobility  of  burghal  realty,  108-153;  in 
Germany,  201-208. 

Monmouth,  149,  n.  4. 

Monmouth,  prior  of,  149,  n.  4. 

Montacute,  69,  103,  n.  2. 

Montfort,  Simon  de,  62,  n.  2. 

Montgomery,  36,  n.  7,  97,  n.  2. 

Montivilliers,  172  f.,  174,  n.  i. 

Morpeth,  69,  84,  96,  n.  i,  121,  184. 

Mortain,  Count  of,  159,  n.  7,  161,  n.  7. 

Mortgage,  146  ff.;  in  Germany,  178,  180. 

Munich,  193,  202,  n.  i,  205. 

Municipal  Corporations  Act,  the  (1835), 
186. 

Miinster,  180,  200,  n.  3. 

Miinster,  bishop  of,  194,  n.  2. 

Murder  fine,  the,  67,  n.  2. 


Naumburg,  195,  205,  206. 

Netherlands,  the,  urban  tenure  in,  3,  7, 
10,  173,  n.  3,  175-178,  182,  183,  200. 

Neuburg,  205. 

Newbury,  156. 

Newcastle,  14,  n.  5,  16;  heriot  denied  at, 
22;  forfeiture  at,  36;  landgable  at,  69; 
rents  simple  at,  84;  commutation  of 
cummin  rents  at,  88,  n.  i;  extension 
of  its  boundaries,  103,  n.  3;  restricted 
sale  at,  120,  124,  184;  restricted  devise 
at,  139,  184;  customal  of,  163. 

Newport,  69. 

New  Ross,  39,  69,  84. 

New  Town,  58,  n.  4. 

Nicholas  of  Norwich,  127,  n.  i. 

Norfolk  Feet  of  Fines,  129,  n.  4. 

Norman  customs,  52,  168,  171,  174,  n.  7, 
184,  n.  2. 

Normandy,  burgage  tenure  in,  3,  6  f., 
129,  136,  168,  170,  n.  7,  172-175,  177, 
182  f.,  200,  201,  n.  2;  feudal  tenure  in, 
17,  n.  9. 

Normans,  the,  43  f.,  163. 

Northampton,  60,  119,  162,  n.  6;  relief 
at,  21;  escheats  at,  26;  retrait  feodal 
at,  52  f.,  54;  '  sellings  '  at,  54  f.,  60, 
128;  landgable  at,  69,  160;  leasing  at, 
90,  n.  4;  charter  of  1200,  113  f.;  the 
kin's  retrait  at,  115  ff.,  135,174,  n.  6, 
184,  205,  n.  16,  206;  fractional  aliena- 
tion fee  at,  128,  129,  183;  at  fee-farm, 
155;  French  borough  at,  160;  Eng- 
lish borough  at,  160. 

Northumberland,  Earl  of,  48. 

North  Wales,  52,  63,  64;  the  English 
garrison  boroughs  of,  175,  n.  i. 

Norton,  John,  121. 

Norton,  lord  of,  see  Fitz-Stephen. 

Norwich,  91,  n.  2,  147,  n.  5;  escheat  at, 
25  f.;  forfeiture  at,  34  f.,  43;  retrait 
feodal  at,  53,  59;  landgable  at,  66,  69, 
79,  n.  I,  161 ;  burgages  in  the  fee  of  the 
castle,  73;  fluidity  of  reality  at,  80, 
n.  i;  sale  prices  at,  81;  rent  simple  at, 
84;  leasing  at,  89,  n.  7;  arable  land 
pertaining  to  a  messuage,  95,  n.  i; 
dimensions  of  messuages,    100,   n.  5; 


230 


INDEX 


lands  in  the  fee  of  the  castle  granted  to 
the  dtizens,  104;  the  waste  at,  105; 
inpenny  and  outf)enny  at,  127,  169, 
183;  sale  at,  129,  n.  4,  138,  143,  184; 
devise  at,  138,  184;  rights  of  the 
femme  covert,  145;  French  influence 
upon,  170,  n.  I. 

Norwich,  Bishop  of,  20,  n.  i . 

Nottingham,  17,  93,  n.  4;  hen  rents  at, 
87,  n.  2;  charter  of  1200,  113  f.;  the 
kin's  retrait  at,  118,  184;  devise  at, 
134  f.,  184;  landgable  at,  160;  mean- 
ing of  mansio  at,  162,  n.  i;  French 
borough  at,  168;  English  borough  at, 
168. 

Okehampton,  69. 

Old  Black  Book,  the,  at  Plymouth,  32, 
n.  2. 

Oldenholm,  meadow  at  Ipswich,  88,  n.  6. 

Old  Ross,  25. 

Original  rents,  see  Burgage  rents. 

Origins,  jungle  of,  4. 

Oswestry,  23,  69,  71,  96,  n.  3,  103,  n.  i, 
171,  n.  2. 

Ouhtred,  John,  79,  n.  i,  148  f.,  150. 

Ouse,  the,  48,  60. 

Overton,  113,  n.  5.  132,  175,  n.  i,  185, 
n.  2. 

Oxford,  20,  n.  i;  escheats  at,  24,  n.  5,  27; 
forfeiture  at,  36,  38;  landgable  at,  66, 
69,  76,  n.  3,  165,  n.  5;  rents  simple  at, 
84;  retained  rent  at,  86,  n.  2;  spur 
rents  at,  88;  dimensions  of  messuages 
at,  100,  n.  5;  leave  to  tunnel  beneath 
the  streets  at,  105;  free  sale  at,  112, 
184;  free  devise  at,  130,  n.  2,  142,  184; 
financial  customs  at,  160;  mural 
mansioncs,  160,  n.  6. 

Oxfordshire,  122,  n.  i. 

Padberg,  196,  200,  notes  i  and  3. 

Paganel,  Maurice,  96,  n.  i,  99,  n.  2. 

Parchim,  194,  n.  11. 

Parliament,  representation  in,  157,  n.  3. 

Passau,  197,  204,  206,  n.  i. 

Patent  Rolls,  the,  9,  67,  150,  214. 

Pembroke,  21,  114,  184. 


Pembroke,  Earl  of,  see  Marshal;  Valence; 
Herbert. 

Pesth,  204,  207. 

Peter  of  Valongies  (Valognes),  163. 

Petersfield,  73,  100,  n.  5. 

Pevensey,  69,  159,  n.  7,  160,  n.  2. 

PfuUendorf,  196,  n.  4. 

Philip,  king  of  the  Romans,  Holy  Ro- 
man emperor  (i  198-1208),  199,  n.  i. 

Picot,  sheriff,  164,  n.  7. 

Pirot,  Sir  Ralph,  28,  n.  3. 

Plantagenets,  the,  120. 

Plymouth,  32,  n.  2,  84,  156. 

Plympton,  16,  n.  6,  84,  103,  n.  2,  166, 
n.  2. 

Pollock,  Sir  F.,  6,  126,  n.  i,  211. 

Pontefract,  78;  alienation  fees  at,  56; 
landgable  at,  69,  170,  n.  8;  collection 
of  the  landgable,  72,  n.  4;  divisibiUty 
of  realty  at,  108,  n.  5;  free  sale  at,  112, 
184;  livery  of  seisin  through  the  lord, 
126,  n.  i;  the  farm  of,  155,  n.  3;  has 
the  customs  of  Grimsby,  1 70,  n.  8. 

Pontorson,  174,  n.  i. 

Portsea,  72. 

Portsmouth,    173,   n.  7;     relief   at,    21 
landgable  at,  69;  pepper  rents  at,  72 
restricted   sale   at,    117,    123  f.,    184 
restricted  devise  at,  141,  184;   at  fee- 
farm,  156. 

Prenzlau,  194,  200,  n.  3. 

Preston,  12;  'sellings'  at,  55,  57;  in- 
penny and  outpenny,  57,  127,  183,  201, 
n.  8;  nature  of  the  burgage  at,  93, 
n.  3;  tvvclvc-foot  burgage  limit  at,  93, 
n.  3,  109,  173,  n.  8;  restricted  sale  at, 
114,  184;    at  fee-farm,  155. 

Qucdlinhurg,  204,  206,  n.  i. 
Quencrton,  John,  122,  n.  i. 
Quencrton,  Robert,  122,  n.  i. 
Quia  Emptores,  statute  (1290),  185. 

RadolfzcU,  205. 
Ralegh,  John  of,  137,  n.  i. 
Ra[)poltstcin,  198. 

Rathcool,  19,  169,  n.  2;  landgable  at,  70; 
each  house  has  four  acres  of  land,  96, 


INDEX 


231 


n.  3;  free  sale  at,  113,  123,  184;  free 
devise  at,  135,  n.  2,  184. 

Rathmore,  70,  96,  n.  3. 

Ratisbon,  179,  197,  205. 

Ravenser,  143,  n.  2. 

Ravensrod,  105,  n.  3. 

Reading,  12,  n.  2,  21,  22,81, 145,  n.  6, 156. 

Redvers,  Baldwin  de  (d.  1245),  Earl  of 
Devon,  103,  n.  2. 

Redvers,  Baldwin  de  (b.  1235,  d.  1263), 
Earl  of  Devon,  son  of  the  preceding, 
15,  n.  I. 

Reformation,  the,  150. 

Reform  Bill,  the,  of  1832,  74,  99,  loi, 
n.  I,  102,  n.  3,  186. 

Reginald,  son  of  Robert  le  Blund,  26. 

Relief,  18-21,  59,  164;  in  Normandy,  172, 
174;  in  the  Netherlands,  176;  in  Ger- 
many, 179,  180,  193. 

Renaissance,  the,  71,  n.  3. 

Rendon,  57,  n.  4. 

Rents  and  sales  of  messuages,  80-91; 
hen  rents,  87,  173,  178,  n.  2,  180,  200, 
n.  2;  condiment  rents,  87  f.,  178, 
n.  2;  glove  rents,  88;  spur  rents,  88; 
rose  rents,  80,  88  f.;  rents  simple,  82- 
84;  retained  rents,  85  f.;  consent  to 
sale,  86,  n.  2,  144  f. 

Restricted  devise,  135-144,  152,  163,  184; 
in  Normandy,  174,  182;  in  Germany, 
207  f. 

Restricted  sale,  114-126,  152  f.,  163,  170, 
184;  in  Normandy,  173,  174,  182;  in 
the  Netherlands,  177;  in  Germany, 
178,  179,  181,  204  ff. 

Retraitfeodal,  52  ff.,  59  f.;  in  the  Nether- 
lands, 177;  in  Germany,  178,  179,  182, 
198  f. 

Retraitlignager,  114-126,  152  f.,  163,  170, 
184;  in  Normandy,  173,  174,  182;  in 
the  Netherlands,  177;  in  Germany, 
178,  179,  181,  204  ff. 

Rheda,  196,  n.  7. 

Rhine,  the,  183. 

Rhine  towns,  85,  91. 

Rhine  valley,  upper,  118,  n.  3. 

Rhuddlan,  90,  n.  4;  free  sale  at,  113,  172, 
n.  I,  184;  devise  at,  140,  144,  n.  i,  184. 


Richmond,  25,  loi,  n.  i,  108,  n.  2. 

Richmond,  John,  Earl  of,  25,  n.  7. 

Robert  le  Blund,  25. 

Robert  le  Vilen,  20,  n.  2. 

Robert  of  Scarborough,  148. 

Robert  the  Leech,  50,  n.  5. 

Rochester,  42,  43,  44,  156. 

Roman  Empire,  the,  77,  n.  i. 

Roman  fever,  165,  n.  i. 

Roman  fiction,  72. 

Roman  law,  174,  n.  3. 

Romney,  19,  45,  118,  128,  183,  184. 

Rosenthal,  Eduard,  7. 

Rospont,  see  Ross. 

Ross,  25,  81,  96,  n.  3. 

Rotenburg,  203. 

Rottweil,  205. 

Rouen,  173,  174. 

Ruthin,  21,  n.  i,  186,  n.  3. 

Ruyton,  70,  71,  96,  n.  3. 

Rye,  93,  n.  4;  forfeiture  at,  40,  42;  cus- 
tomal  of,  41;  landgable  at,  70;  sale 
prices  at,  81;  rent  simple  at,  84;  re- 
tained rents  at,  86,  n.  2;  vacant  land 
at,  105,  n.  2;  divisibility  of  realty, 
108,  n.  2. 

Saffelaere,  176,  n.  9. 

St.  Augustine's  church,  at  Norwich,  34. 

St.  Botolph's,  prior  of,  47,  notes  6,  7. 

St.  Ives,  84. 

St.  John's  day,  88. 

St.  Lezier,  173,  n.  8. 

St.  Mary's  Abbey,  87,  n.  4. 

St.  Olave's  church,  at  Norwich,  34. 

St.  Paul's,  100. 

St.  Peter,  hospital  of,  at  York,  76,  n.  3. 

St.  Swithin's,  at   Winchester,  prior  of, 

47,  n.  8,  198,  n.  2. 
Sale,    see    Free    sale;     Restricted    sale; 

Rents  and  sales  of  messuages. 
Salford,  22,  55,70,  119,  137, 171,  n.  2,  184. 
Salisbury,  70,  75,  n.  2,  126,  n.  i,  147. 
Salisbury,  bishop  of,  147. 
Salzwedel,  194,  n.  11. 
Sampson,  Abbot,  117,  125,  n.  2. 
Sandwich,    14;     wardship   at,    17;     foi"- 

feiture  at,  40;    the  waste  considered 


232 


INDEX 


communal  prop>erty,  io6,  n.  i;  inpenny 
and  outpenny  at,  127,  183;  fee  to 
town-clerk,  127  f. 

Saxony,  198,  n.  5. 

Scandinavian  lands,  the,  183,  n.  2. 

Scarborough,  78,  91,  n.  2;  gable  at,  62, 
70,  71;  unique  custom  of,  as  to  bur- 
gage rents,  71,  76,  n.  3,  109;  capital 
messuages  at,  79,  n.  i;  rents  simple  at, 
84;  leasing  at,  90;  nature  of  the  bur- 
gage at,  93,  n.  4;  extension  of  the 
borough  bounds,  103,  n.  3;  the  waste 
at,  105,  n.  6;  free  devise  at,  133,  184; 
accumulation  of  burgages  at,  148,  150; 
at  fee-farm  (1253),  156. 

Schulte,  Aloys,  192,  n.  2. 

Schwaney,  195,  n.  i,  201,  206,  n.  i. 

Schwerin,  196. 

Scotland,  71. 

Scots,  the,  91,  n.  2. 

Sege,  Richard  de,  145,  n.  i. 

Sellings,  see  Alienation  Fees. 

Selz,  197. 

Shaftesbury,  57,  70,  84. 

Sharpness,  41. 

ShefTord,  43,  44. 

Shephard,  Robert,  12,  n.  2. 

Shrewsbury,  184;  the  marriage  incident 
at,  15,  n.  3,  164,  170,  n.  3;  landgablc  at, 
70,  161;  devise  at,  140,  142,  n.  4;  hcriot 
at,  164;   the  Norman  hourg  at,  167. 

Sigmund,  duke  of  Saxony,  198,  n.  5. 

Silverun,  daughter  of  Robert  Ic  Vilcn, 
gives  a  release  from  reliefs  and  hom- 
ages, 20,  n  2,  50,  n.  5. 

Socst,  179,  180,  notes  6  and  8,  201. 

Solomiar.  175,  n.  2. 

Southam[)ton,  93.  n.  4,  101,  n.  i;  es- 
cheat? at,  26;  rent  simple  at,  84;  hen 
rents  at,  87,  n.  2,  178,  n.  2;  glove  and 
|>cpper  rents  at,  88,  n.  4;  the  waste  at. 
105.  n.  ();  divisibility  of  realty  at,  108, 
n.  2;  devise  at,  141,  184;  mortgage  at, 

147,  n.  8;  ;u  (  umulation  of  burgages  at, 

148,  149- 
Soiithstokc,  85. 
Southwark,  29,  157,  n.  3. 
Southwi(k,  72. 


Spires,  179,  199,  n.  i,  202,  203,  n.  10, 
207. 

Stablegate,  133,  n.  5. 

Stade,  19s,  202,  204. 

Stafford,  162. 

Stafford,  Letia  de,  134,  n.  5. 

Stafford,  Thomas  de,  134,  n.  5. 

Staffordshire,  87. 

Stargard,  200,  n.  3. 

Statute  of  Wills,  the  (1540).  186. 

Stendal,  194,  n.  11. 

Stephens,  A.  J.,  6,  211. 

Stockport,  137;  relief  at,  21,  171,  n.  2; 
heriot  at,  22,  23,  n.  6,  171,  n.  2;  fealty 
at,  49,  50;  homage  at,  49,  50;  fixed 
alienation  fees  at,  55;  suit  of  court  at, 
58;  landgable  at,  70;  restricted  sale 
at,  119,  184;  restricted  devise  at,  137, 
184. 

Stokecurcy,  48,  104,  n.  i. 

Stralsund,  202,  206  f. 

Strasburg,  182,  n.  i,  197,  198,  199,  n.  i, 
201 , 204. 

Suit  of  court,  58,  60. 

Sussex,  58,  n.  9,  96,  n.  3. 

Sussex.  Earl  of,  see  Albini. 

Suwerk,  see  Southwark. 

Swansea,  70. 

Swarland,  14,  n.  5. 

Swenin,  Katherine,  207,  n.  11. 

Swords,  70. 

Taillor,  William,  122,  n.  i. 

Taunton,  70,  160,  n.  3. 

Tcltcnhall  Regis,  54,  n.  3. 

Teutonic  lands,  183. 

Teutons,  183. 

Tewkesbury,  12;  free  from  relief,  19; 
free  from  heriot,  22;  fealty  at,  46; 
alienation  fees  at,  55;  landgal)lc  at, 
70;  restricted  side  at,  114,  115,  124, 
184;  restricted  devise  at.  137,  184; 
mortgage  at,  146. 

Thame,  29,  n.  2. 

Thames,  the,  100,  183. 

Thornbury,  81,  108,  n.  2. 

Thurkelby,  Robert  of,  43,  n.  i. 

Torskey,  163;  customal  of,  46.  n.  3. 


INDEX 


233 


Tower  of  London,  the,  35,  n.  2,  104,  n.  i. 
Trent,  the,  48,  60,  105,  n.  7. 
Troppau,  207. 
Tudor  sickle,  the,  1 50. 
Tutbury,  15,  n.  2,  23,  87. 

Uberlingen,  205,  207. 

Ulm,  200,  notes  2  and  3,  207,  n.  5,  208. 

Ulwi  of  Hatfield,  163. 

tjlzen,  194,  204. 

Upper  Rhine,  towns  of  the,  178. 

Uttoxeter,  23,  70,  73,  n.  7,  87,  164,  n.  i. 

Valence,  Aymer  de  (d.  1324),  Earl  of 
Pembroke,  charters  Wexford  (13 17), 
93,  n-  3,  123,  n.  2. 

Verden,  194,  205,  206,  n.  i. 

Vemeuil,  170,  n.  7,  174,  n.  i. 

Vesci,  William  de,  122,  n.  2. 

Vienna,  181;  free  from  the  marriage 
incident,  193. 

Vinus  le  Longe,  36,  n.  3. 

Wake,  John,  Lord,  57. 

Wales,  52,  199,  n.  2. 

Wallingford,  62;  landgable  at,  70,  160, 
notes  I  and  2;  retained  rent  at,  86, 
n.  2;  borough  customs  of,  in  Domes- 
day, 158. 

Walsall,  54,  70,  126,  n.  i. 

Walter  of  Norwich,  127,  n.  i. 

Warburg,  200,  n.  i. 

Wardship,  15-18,  59;   in  Germany,  180, 

193- 

Warin,  son  of  Gerald,  43,  n.  i. 

Wars  of  the  Roses,  43. 

Waste,  the,  104  ff. 

Waterford,  50,  n.  5;  wardship  at,  16, 
n.  4;  no  relief  at,  19,  n.  6;  has  the 
customs  of  Dubhn  and  Bristol,  19, 
n.  6,  123,  135,  n.  2,  170,  n.  8;  land- 
gable  at,  65,  70,  170,  n.  8;  free  sale  at, 
113,  123,  184;  free  devise  at,  135,  n.  2, 
138,  n.  I,  184;  disherison  in  anger  at, 
141,  n.  8;  accumulation  of  burgages 
at,  148. 

Wa>'nflete,  William  of,  bishop  of  Win- 
chester, 39,  n.  3. 


Weare,  108,  n.  2. 

Wearmouth,  114,  n.  6,  120,  n.  i,  184. 

Weichbild,  see  Germany,  urban  tenure 
in. 

Weida,  207. 

Wells,  50,  n.  5,  70,  86,  n.  2,  loi,  n.  i,  145, 
n.  I. 

Welsh,  the,  97. 

Welsh  border,  the,  164,  173,  n.  2. 

Welsh  boroughs,  the,  199,  n.  3. 

Welsh  marches,  the,  95,  96,  114,  167. 

Welsh  towns,  136. 

Wenceslaus,Holy  Roman  emperor  (1378- 
1400),  203,  n.  6. 

Werl,  194. 

Wernigerode,  194. 

Wesel,  196. 

Westgate,  aldermanry  of,  36. 

Westmelne,  81,  84. 

Westminster,  28,  n.  3,  36,  n.  i,  iii,  n.  2, 
129,  n.  4. 

Westminster,  Marquis  of,  157,  n.  2. 

Weston,  John  de,  36,  n.  6. 

West  Teignmouth,  48,  n.  3. 

Wetzlar,  180,  181,  n.  11. 

Wexford,  13,  70,  93,  n.  3,  123,  136. 

Weymouth,  93,  n.  4;  fealty  at,  47,  198, 
n.  2;  landgable  at,  70,  72,  n.  4;  re- 
stricted devise  at,  141,  184. 

Whitby,  13;  fealty  at,  47;  retrait 
feodal  at,  54,  59,  179,  n.  15;  aliena- 
tion fees  at,  55;  landgable  at,  70; 
rent  simple  at,  84. 

William  I,  the  Conqueror,  king  of  Eng- 
land (1066-87),  120,  158,  159,  161, 
164,  168. 

WiUiam  II,  '  the  Red  '  (Rufus),  king  of 
England  (1087-1100),  26,  164. 

Winchelsea,  70. 

Winchester,  47,  n.  8,  91,  n.  2,  93,  n.  4, 
150,  167,  168;  escheat  at,  29,  30; 
Liber  Winton',  65,  71,  159;  landgable 
at,  65,  70,  71,  76,  77,  159,  160;  rents 
simple  at,  84;  leasing  at,  89;  divisi- 
bility of  realty  at,  no,  n.  3;  free  sale 
at,  112,  184;   devise  at,  139,  n.  7.     . 

Winchester,  bishop  of,  141,  n.  2,  150, 
n.  4. 


234 


INDEX 


Windsor,  26. 

Winter  Queen,  the,  see  Elizabeth,  daugh- 
ter of  King  James  I. 

Wirzburg,  see  Wiirzburg. 

Wismar,  202,  n.  3,  205. 

Wodehall,  14,  n.  5. 

Woodstock,  84;  landgable  at,  70;  re- 
stricted sale  at,  122  f.,  126,  n.  i,  184; 
at  fee-farm  (1453),  156. 

Wool  Quay,  the,  108,  n.  3. 

Worcester,  84,  86,  n.  2,  149,  n.  4. 

Worms,  179,  189,  n.  i,  203. 

Wiirzburg,  7,  198,  206,  n.  i. 

Wycombe,  78,  n.  5;  rent  simple  at,  84; 
retained  rent  at,  86,  n.  2;  free  sale  at, 
113,  184;  free  devise  at,  132,  184. 


Yarmouth,  18,  n.  3;  landgable  at,  70; 
restricted  devise  at,  138,  n.  3,  139,  184. 

York,  103,  n.  i,  134,  158,  n.  2,  162;  free 
from  relief,  19;  singular  death  of 
Isaac  the  Jew  at,  26,  n.  5;  escheated 
mill  at,  26,  n.  5;  forfeiture  at,  36; 
hawgable  at,  63,  70,  76,  n.  3,  161; 
rents  simple  at,  84;  glove  and  pepper 
rents  at,  88,  n.  4;  ruinous  messuages 
at,  loi,  n.  i;  the  kin's  retrail  at,  120, 
184;  free  devise  at,  131  f.,  139,  n.  7, 
184;  wasted  by  the  Danes,  166  n.  i. 

Youghal,  70. 

Ypres,  141,  n.  2. 

Zabem,  201,  205. 
Zuzenhausen,  203. 


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Hernmeon,  M.W. 

Burgage  tenure  in  mediaeval 
Enc^land. 


